[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Sixth Amendment - Rights of Accused in Criminal Prosecutions]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 1397]]

                             SIXTH AMENDMENT





        Criminal Prosecutions.....................................  1399
        Coverage..................................................  1399
                Offenses Against the United States................  1400
        Right to a Speedy and Public Trial........................  1400
        Speedy Trial..............................................  1400
                Source and Rationale..............................  1400
                Application and Scope.............................  1401
                When the Right Is Denied..........................  1402
        Public Trial..............................................  1404
        Right to Trial by Impartial Jury..........................  1406
        Jury Trial................................................  1406
                The Attributes of the Jury........................  1408
                Criminal Proceedings to Which the Guarantee 
                    Applies.......................................  1410
        Impartial Jury............................................  1412
        Place of Trial--Jury of the Vicinage......................  1419
        Notice of Accusation......................................  1420
        Confrontation.............................................  1421
        Compulsory Process........................................  1429
        Assistance of Counsel.....................................  1429
        Development of an Absolute Right to Counsel at Trial......  1429
                Powell v. Alabama.................................  1430
                Johnson v. Zerbst.................................  1431
                Betts v. Brady and Progeny........................  1432
                Gideon v. Wainwright..............................  1434
                Protection of the Right to Retained Counsel.......  1435
                Effective Assistance of Counsel...................  1437
                Self-Representation...............................  1440
        Right to Assistance of Counsel in Nontrial Situations.....  1440
                Judicial Proceedings Before Trial.................  1440
                Custodial Interrogation...........................  1441
                Lineups and Other Identification Situations.......  1444
                Post-Conviction Proceedings.......................  1447
                Noncriminal and Investigatory Proceedings.........  1447

[[Page 1399]]
                             SIXTH AMENDMENT


  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.

                          CRIMINAL PROSECUTIONS


        Criminal prosecutions in the District of Columbia\1\ and in 
incorporated territories\2\ must conform to this Amendment, but those in 
the unincorporated territories need not do so.\3\ In upholding a trial 
before a United States consul of a United States citizen for a crime 
committed within the jurisdiction of a foreign nation, the Court 
specifically held that this Amendment reached only citizens and others 
within the United States or who were brought to the United States for 
trial for alleged offenses committed elsewhere, and not to citizens 
residing or temporarily sojourning abroad.\4\ It is clear that this 
holding no longer is supportable after Reid v. Covert,\5\ but it is not 
clear what the constitutional rule is. All of the

[[Page 1400]]
rights guaranteed in this Amendment are so fundamental that they have 
been made applicable against state abridgment by the due process clause 
of the Fourteenth Amendment.\6\

        \1\Callan v. Wilson, 127 U.S. 540 (1888).
        \2\Reynolds v. United States, 98 U.S. 145 (1879). See also 
Lovato v. New Mexico, 242 U.S. 199 (1916).
        \3\Balzac v. Puerto Rico, 258 U.S. 298, 304-05 (1922); Dorr v. 
United States, 195 U.S. 138 (1904). These holdings are, of course, 
merely one element of the doctrine of the Insular Cases, De Lima v. 
Bidwell, 182 U.S. 1 (1901); and Downes v. Bidwell, 182 U.S. 244 (1901), 
concerned with the ``Constitution following the flag.'' Supra, pp.324-
25. Cf. Rassmussen v. United States, 197 U.S. 516 (1905).
        \4\In re Ross, 140 U.S. 453 (1891).
        \5\354 U.S. 1 (1957) (holding that civilian dependents of 
members of the Armed Forces overseas could not constitutionally be tried 
by court-martial in time of peace for capital offenses committed 
abroad). Four Justices, Black, Douglas, Brennan, and Chief Justice 
Warren, disapproved Ross as ``resting . . . on a fundamental 
misconception'' that the Constitution did not limit the actions of the 
United States Government wherever it acted, id. at 5-6, 10-12, and 
evinced some doubt with regard to the Insular Cases as well. Id. at 12-
14. Justices Frankfurter and Harlan, concurring, would not accept these 
strictures, but were content to limit Ross to its particular factual 
situation and to distinguish the Insular Cases. Id. at 41, 65. Cf. 
Middendorf v. Henry, 425 U.S. 25, 33-42 (1976) (declining to decide 
whether there is a right to counsel in a court-martial, but ruling that 
the summary court-martial involved in the case was not a ``criminal 
prosecution'' within the meaning of the Amendment).
        \6\Citation is made in the sections dealing with each provision.

        Offenses Against the United States.--There are no common-law 
offenses against the United States. Only those acts which Congress has 
forbidden, with penalties for disobedience of its command, are 
crimes.\7\ Actions to recover penalties imposed by act of Congress 
generally but not invariably have been held not to be criminal 
prosecutions,\8\ as is true also of deportation proceedings,\9\ but 
contempt proceedings which were at one time not considered to be 
criminal prosecutions are no longer within that category.\10\ To what 
degree Congress may make conduct engaged in outside the territorial 
limits of the United States a violation of federal criminal law is a 
matter not yet directly addressed by the Court.\11\

        \7\United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32 (1812); 
United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816); United States 
v. Britton, 108 U.S. 199, 206 (1883); United States v. Eaton, 144 U.S. 
677, 687 (1892).
        \8\Oceanic Navigation Co. v. Stranaham, 214 U.S. 320 (1909); 
Hepner v. United States, 213 U.S. 103 (1909); United States v. Regan, 
232 U.S. 37 (1914).
        \9\United States ex rel. Turner v. Williams, 194 U.S. 279, 289 
(1904); Zakonaite v. Wolf, 226 U.S. 272 (1912).
        \10\Compare In re Debs, 158 U.S. 564 (1895), with Bloom v. 
Illinois, 391 U.S. 194 (1968).
        \11\See United States v. Bowman, 260 U.S. 94 (1922) (treating 
question as a matter of statutory interpretation); National Commission 
on Reform of Federal Criminal Laws, Working Papers 69-76 (1970). 
Congress has recently asserted the authority by criminalizing various 
terrorist acts committed abroad against U.S. nationals. See, e.g., 
prohibitions against hostage taking and air piracy contained in Pub. L. 
No. 98-473, ch. XX; 18 U.S.C. Sec. 1203 and 49 U.S.C. app. 
Sec. Sec. 1471, 72; and prohibitions against killing or doing physical 
violence to a U.S. national abroad contained in Pub. L. No. 99-399, 
Sec. 1202(a), 100 Stat. 896 (1986); 18 U.S.C. Sec. 2331. 
Extraterritorial jurisdiction under the hostage taking and air piracy 
laws was upheld by an appeals court in United States v. Yunis, 924 F.2d 
1086 (D.C. Cir. 1991).

                             SIXTH AMENDMENT



      Speedy Trial

        Source and Rationale.--The right to a speedy trial may be 
derived from a provision of Magna Carta and it was a right so 
interpreted by Coke.\12\ Much the same language was incorporated

[[Page 1401]]
into the Virginia Declaration of Rights of 1776 \13\ and from there into 
the Sixth Amendment. Unlike other provisions of the Amendment, this 
guarantee can be attributable to reasons which have to do with the 
rights of and infliction of harms to both defendants and society. The 
provision is ``an important safeguard to prevent undue and oppressive 
incarceration prior to trial, to minimize anxiety and concern 
accompanying public accusation and to limit the possibility that long 
delay will impair the ability of an accused to defend himself.''\14\ The 
passage of time alone may lead to the loss of witnesses through death or 
other reasons and the blurring of memories of available witnesses. But 
on the other hand, ``there is a societal interest in providing a speedy 
trial which exists separate from and at times in opposition to the 
interests of the accused.'' Persons in jail must be supported at 
considerable public expense and often families must be assisted as well. 
Persons free in the community may commit other crimes, may be tempted 
over a lengthening period of time to ``jump'' bail, and may be able to 
use the backlog of cases to engage in plea bargaining for charges or 
sentences which do not give society justice. And delay often retards the 
deterrent and rehabilitative effects of the criminal law.\15\

        \12\``We will sell to no man, we will not deny or defer to any 
man either justice or right.'' Ch. 40 of the 1215 Magna Carta, a portion 
of ch. 29 of the 1225 reissue. Klopfer v. North Carolina, 386 U.S. 213, 
223-24 (1967).
        \13\7 F. Thorpe, The Federal and State Constitutions, H. Doc. 
No. 357, 59th Congress, 2d Sess. 8, 3813 (1909).
        \14\United States v. Ewell, 383 U.S. 116, 120 (1966). See also 
Klopfer v. North Carolina, 386 U.S. 213, 221-22 (1967); Smith v. Hooey, 
393 U.S. 374, 377-379 (1969); Dickey v. Florida, 389 U.S. 30, 37-38 
        \15\Barker v. Wingo, 407 U.S. 514, 519 (1972); Dickey v. 
Florida, 398 U.S. 30, 42 (1970) (Justice Brennan concurring). Congress 
by the Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2076, 18 
U.S.C. Sec. Sec. 3161-74, has codified the law with respect to the 
right, intending ``to give effect to the sixth amendment right to a 
speedy trial.'' S. Rep. No. 1021, 93d Congress, 2d Sess. 1 (1974).

        Application and Scope.--Because the guarantee of a speedy trial 
``is one of the most basic rights preserved by our Constitution,'' it is 
one of those ``fundamental'' liberties embodied in the Bill of Rights 
which the due process clause of the Fourteenth Amendment makes 
applicable to the States.\16\ The protection afforded by this guarantee 
``is activated only when a criminal prosecution has begun and extends 
only to those persons who have been `accused' in the course of that 
prosecution.'' Invocation of the right need not await indictment, 
information, or other formal charge but begins with the actual 
restraints imposed by arrest if those restraints precede the formal 
preferring of charges.\17\ Possible prejudice that

[[Page 1402]]
may result from delays between the time government discovers sufficient 
evidence to proceed against a suspect and the time of instituting those 
proceedings is guarded against by statutes of limitation, which 
represent a legislative judgment with regard to permissible periods of 
delay.\18\ In two cases, the Court held that the speedy trial guarantee 
had been violated by States which preferred criminal charges against 
persons who were already incarcerated in prisons of other jurisdictions 
following convictions on other charges when those States ignored the 
defendants' requests to be given prompt trials and made no effort 
through requests to prison authorities to obtain custody of the 
prisoners for purposes of trial.\19\ A state practice permitting the 
prosecutor to take nolle prosequi with leave, which discharged the 
accused from custody but left him subject at any time thereafter to 
prosecution at the discretion of the prosecutor, the statute of 
limitations being tolled, was condemned as violative of the 

        \16\Klopfer v. North Carolina, 386 U.S. 213, 226 (1967).
        \17\United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971). 
Justices Douglas, Brennan, and Marshall disagreed, arguing that the 
``right to a speedy trial is the right to be brought to trial speedily 
which would seem to be as relevant to pretrial indictment delays as it 
is to post-indictment delays,'' but concurring because they did not 
think the guarantee violated under the facts of the case. Id. at 328. In 
United States v. MacDonald, 456 U.S. 1 (1982), the Court held the clause 
was not implicated by the action of the United States when, in May of 
1970, it proceeded with a charge of murder against defendant under 
military law but dismissed the charge in October of that year, and he 
was discharged in December. In June of 1972, the investigation was 
reopened and an investigation was begun, but a grand jury was not 
convened until August of 1974, and MacDonald was not indicted until 
January of 1975. The period between dismissal of the first charge and 
the later indictment had none of the characteristics which called for 
application of the speedy trial clause. The period between arrest and 
indictment must be considered in evaluating a speedy trial claim. Marion 
and MacDonald were applied in United States v. Loud Hawk, 474 U.S. 302 
(1986), holding the speedy trial guarantee inapplicable to the period 
during which the government appealed dismissal of an indictment, since 
during that time the suspect had not been subject to bail or otherwise 
        \18\United States v. Marion, 404 U.S. 307, 322-23 (1971). Cf. 
United States v. Toussie, 397 U.S. 112, 114-15 (1970). In some 
circumstances, pre-accusation delay could constitute a due process 
violation but not a speedy trial problem. If prejudice results to a 
defendant because of the government's delay, a court should balance the 
degree of prejudice against the reasons for delay given by the 
prosecution. Marion, supra, at 324; United States v. Lovasco, 431 U.S. 
783 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982).
        \19\Smith v. Hooey, 393 U.S. 374 (1969); Dickey v. Florida, 398 
U.S. 30 (1970).
        \20\Klopfer v. North Carolina, 386 U.S. 213 (1967). In Pollard 
v. United States, 352 U.S. 354 (1957), the majority assumed and the 
dissent asserted that sentence is part of the trial and that too lengthy 
or unjustified a delay in imposing sentence could run afoul of this 

        When the Right is Denied.--``The right of a speedy trial is 
necessarily relative. It is consistent with delays and depends upon 
circumstances. It secures rights to a defendant. It does not preclude 
the rights of public justice.''\21\ No length of time is per se too long 
to pass scrutiny under this guarantee,\22\ but on the other hand nei

[[Page 1403]]
ther does the defendant have to show actual prejudice by delay.\23\ The 
Court rather has adopted an ad hoc balancing approach. ``We can do 
little more than identify some of the factors which courts should assess 
in determining whether a particular defendant has been deprived of his 
right. Though some might express them in different ways, we identify 
four such factors: Length of delay, the reason for the delay, the 
defendant's assertion of his right, and prejudice to the 
defendant.''\24\ The fact of delay triggers an inquiry and is dependent 
on the circumstances of the case. Reasons for delay will vary. A 
deliberate delay for advantage will weigh heavily, whereas the absence 
of a witness would justify an appropriate delay, and such factors as 
crowded dockets and negligence will fall between these other 
factors.\25\ It is the duty of the prosecution to bring a defendant to 
trial, and the failure of the defendant to demand the right is not to be 
construed as a waiver of the right;\26\ yet, the defendant's 
acquiescence in delay when it works to his advantage should be 
considered against his later assertion that he was denied the guarantee, 
and the defendant's responsibility for the delay would be conclusive. 
Finally, a court should look to the possible prejudices and 
disadvantages suffered by a defendant during a delay.\27\

        \21\Beavers v. Haubert, 198 U.S. 77, 87 (1905) (holding that the 
guarantee could not be invoked by a defendant first indicted in one 
district to prevent removal to another district where he had also been 
        \22\Cf. Pollard v. United States, 352 U.S. 354 (1957); United 
States v. Ewell, 383 U.S. 116 (1966). See United States v. Provoo, 350 
U.S. 857 (1955), aff'g 17 F.R.D. 183 (D. Md. 1955).
        \23\United States v. Marion, 404 U.S. 307, 320 (1971); Barker v. 
Wingo, 407 U.S. 514, 536 (1972) (Justice White concurring).
        \24\Barker v. Wingo, 407 U.S. 514, 530 (1972). For the federal 
courts, Congress under the Speedy Trial Act of 1974 imposed strict time 
deadlines, replacing the Barker factors.
        \25\Barker v. Wingo, 407 U.S. 514, 531 (1972). Delays caused by 
the prosecution's interlocutory appeal will be judged by the Barker 
factors, of which the second--the reason for the appeal--is the most 
important. United States v. Loud Hawk, 474 U.S. 302 (1986) (no denial of 
speedy trial, since prosecution's position on appeal was strong, and 
there was no showing of bad faith or dilatory purpose). If the 
interlocutory appeal is taken by the defendant, he must ``bear the heavy 
burden of showing an unreasonable delay caused by the prosecution [or] 
wholly unjustifiable delay by the appellate court'' in order to win 
dismissal on speedy trial grounds. Id. at 316.
        \26\Id. at 528. See generally id. at 523-29. Waiver is ``an 
intentional relinquishment or abandonment of a known right or 
privilege,'' Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and it is not 
to be presumed but must appear from the record to have been 
intelligently and understandingly made. Carnley v. Cochran, 369 U.S. 
506, 516 (1962).
        \27\Barker v. Wingo, 407 U.S. 514, 532 (1972).

        A determination that a defendant has been denied his right to a 
speedy trial results in a decision to dismiss the indictment or to 
reverse a conviction in order that the indictment be dismissed.\28\

        \28\Strunk v. United States, 412 U.S. 434 (1973). A trial court 
denial of a motion to dismiss on speedy trial grounds is not an 
appealable order under the ``collateral order'' exception to the 
finality rule. One must raise the issue on appeal from a conviction. 
United States v. MacDonald, 435 U.S. 850 (1977).


[[Page 1404]]
      Public Trial

        ``This nation's accepted practice of guaranteeing a public trial 
to an accused has its roots in our English common law heritage. The 
exact date of its origin is obscure, but it likely evolved long before 
the settlement of our land as an accompaniment of the ancient 
institution of jury trial. In this country the guarantee to an accused 
of the right to a public trial first appeared in a state constitution in 
1776. Following the ratification in 1791 of the Federal Constitution's 
Sixth Amendment . . . most of the original states and those subsequently 
admitted to the Union adopted similar constitutional provisions. Today 
almost without exception every state by constitution, statute, or 
judicial decision, requires that all criminal trials be open to the 

        ``The traditional Anglo-American distrust for secret trials has 
been variously ascribed to the notorious use of this practice by the 
Spanish Inquisition, to the excesses of the English Court of Star 
Chamber, and to the French monarchy's abuse of the letter de cachet. All 
of these institutions obviously symbolized a menace to liberty. . . . 
Whatever other benefits the guarantee to an accused that his trial be 
conducted in public may confer upon our society, the guarantee has 
always been recognized as a safeguard against any attempt to employ our 
courts as instruments of persecution.''\29\ The purposes of the 
requirement of open trials are multiple: it helps to assure the criminal 
defendant a fair and accurate adjudication of guilt or innocence, it 
provides a public demonstration of fairness, it discourages perjury, the 
misconduct of participants, and decisions based on secret bias or 
partiality. The Court has also expatiated upon the therapeutic value to 
the community of open trials to enable the public to see justice done 
and the fulfillment of the urge for retribution that people feel upon 
the commission of some kinds of crimes.\30\ Because of the near 
universality of the guarantee in this country, the Supreme Court has had 
little occasion to deal with the right. It is a right so fundamental 
that it is protected against state deprivation by the due process 
clause,\31\ but it is not

[[Page 1405]]
so absolute that reasonable regulation designed to forestall prejudice 
from publicity and disorderly trials is foreclosed.\32\ The banning of 
television cameras from the courtroom and the precluding of live 
telecasting of a trial is not a denial of the right,\33\ although the 
Court does not inhibit televised trials under the proper 

        \29\In re Oliver, 333 U.S. 257, 266-70 (1948) (citations 
omitted). Other panegyrics to the value of openness, accompanied with 
much historical detail, are Gannett Co. v. DePasquale, 443 U.S. 368, 
406, 411-33 (1979) (Justice Blackmun concurring in part and dissenting 
in part); Richmond Newspapers v. Virginia, 448 U.S. 555, 564-73 (1980) 
(plurality opinion of Chief Justice Burger); id. at 589-97 (Justice 
Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 
596, 603-07 (1982).
        \30\Estes v. Texas, 381 U.S. 532, 538-39 (1965); Richmond 
Newspapers v. Virginia, 448 U.S. 555, 569-73 (1980) (plurality opinion 
of Chief Justice Burger); id. at 593-97 (Justice Brennan concurring).
        \31\In re Oliver, 333 U.S. 257 (1948); Levine v. United States, 
362 U.S. 610 (1960). Both cases were contempt proceedings which were not 
then ``criminal prosecutions'' to which the Sixth Amendment applied (for 
the modern rule see Bloom v. Illinois, 391 U.S. 194 (1968)), so that the 
cases were wholly due process holdings. Cf. Richmond Newspapers v. 
Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring).
        \32\Cf. Sheppard v. Maxwell, 384 U.S. 333 (1966); Nebraska Press 
Ass'n v. Stuart, 427 U.S. 539 (1976).
        \33\Estes v. Texas, 381 U.S. 532 (1965). Cf. Nixon v. Warner 
Communications, 435 U.S. 589, 610 (1978).
        \34\Chandler v. Florida, 449 U.S. 560 (1981).

        The Court has borrowed from First Amendment cases in protecting 
the right to a public trial. Closure of trials or pretrial proceedings 
over the objection of the accused may be justified only if the state can 
show ``an overriding interest based on findings that closure is 
essential to preserve higher values and is narrowly tailored to serve 
that interest.''\35\ In Waller v. Georgia,\36\ the Court held that an 
accused's Sixth Amendment rights had been violated by closure of all 7 
days of a suppression hearing in order to protect persons whose phone 
conversations had been taped, when less than 21/2 hours of the 
hearing had been devoted to playing the tapes. The need for openness at 
suppression hearings ``may be particularly strong,'' the Court 
indicated, due to the fact that the conduct of police and prosecutor is 
often at issue.\37\ However, an accused's Sixth Amendment-based request 
for closure must meet the same stringent test applied to governmental 
requests to close proceedings: there must be ``specific findings . . . 
demonstrating that first, there is a substantial probability that the 
defendant's right to a fair trial will be prejudiced by publicity that 
closure would prevent, and second, reasonable alternatives to closure 
cannot adequately protect the defendant's fair trial rights.''\38\

        \35\Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 
(1984) (Press-Enterprise I).
        \36\467 U.S. 39 (1984).
        \37\Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that 
the Press-Enterprise I standard governs such 6th Amendment cases).
        \38\Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 
(1986) (Press-Enterprise II).

        The Sixth Amendment guarantee is apparently a personal right of 
the defendant, which he may in some circumstances waive in conjunction 
with the prosecution and the court.\39\ The First Amendment, however, 
has been held to protect public and press ac

[[Page 1406]]
cess to trials in all but the most extraordinary circumstances,\40\ 
hence a defendant's request for closure of his trial must be balanced 
against the public and press right of access. Before such a request for 
closure will be honored, there must be ``specific findings . . . 
demonstrating that first, there is a substantial probability that the 
defendant's right to a fair trial will be prejudiced by publicity that 
closure would prevent, and second, reasonable alternatives to closure 
cannot adequately protect the defendant's fair trial rights.''\41\

        \39\Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
        \40\Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). See also Gannett 
Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Justice Powell concurring).
        \41\Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). 
See First Amendment discussion supra pp.1105-08.


      Jury Trial

        By the time the United States Constitution and the Bill of 
Rights were drafted and ratified, the institution of trial by jury was 
almost universally revered, so revered that its history had been traced 
back to Magna Carta.\42\ The jury began in the form of a grand or 
presentment jury with the role of inquest and was started by Frankish 
conquerors to discover the King's rights. Henry II regularized this type 
of proceeding to establish royal control over the machinery of justice, 
first in civil trials and then in criminal trials. Trial by petit jury 
was not employed at least until the reign of Henry III, in which the 
jury was first essentially a body of witnesses, called for their 
knowledge of the case; not until the reign of Henry VI did it become the 
trier of evidence. It was during the Seventeenth Century that the jury 
emerged as a safeguard for the criminally accused.\43\ Thus, in the 
Eighteenth Century, Blackstone could commemorate the institution as part 
of a ``strong and two-fold barrier . . . between the liberties of the 
people and the prerogative of the crown'' because ``the truth of every 
accusation . . . . [must] be confirmed by the unanimous suffrage of 
twelve of his equals and neighbors indifferently chosen and superior to 
all suspicion.''\44\ The right was guaranteed in the constitutions of 
the original 13 States, was guaranteed in the body of the Constitu

[[Page 1407]]
tion\45\ and in the Sixth Amendment, and the constitution of every State 
entering the Union thereafter in one form or another protected the right 
to jury trial in criminal cases.\46\ ``Those who emigrated to this 
country from England brought with them this great privilege `as their 
birthright and inheritance, as a part of that admirable common law which 
had fenced around and interposed barriers on every side against the 
approaches of arbitrary power.'''\47\

        \42\Historians no longer accept this attribution. Thayer, The 
Jury and Its Development, 5 Harv. L. Rev. 249, 265 (1892), and the Court 
has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968).
        \43\W. Forsyth, History of Trial by Jury (London: 1852).
        \44\W. Blackstone, Commentaries on the Laws of England *349-*350 
(T. Cooley 4th ed. 1896). The other of the ``two-fold barrier'' was, of 
course, indictment by grand jury.
        \45\In Art III, Sec. 2.
        \46\Duncan v. Louisiana, 391 U.S. 145, 153 (1968).
        \47\Thompson v. Utah, 170 U.S. 343, 349-50 (1898), quoting 3 J. 
Story, Commentaries on the Constitution of the United States 1773 

        ``The guarantees of jury trial in the Federal and State 
Constitutions reflect a profound judgment about the way in which law 
should be enforced and justice administered. A right to jury trial is 
granted to criminal defendants in order to prevent oppression by the 
Government. Those who wrote our constitutions knew from history and 
experience that it was necessary to protect against unfounded criminal 
charges brought to eliminate enemies and against judges too responsive 
to the voice of higher authority. The framers of the constitutions 
strove to create an independent judiciary but insisted upon further 
protection against arbitrary action. Providing an accused with the right 
to be tried by a jury of his peers gave him an inestimable safeguard 
against the corrupt overzealous prosecutor and against the compliant, 
biased, or eccentric judge. . . . [T]he jury trial provisions . . . 
reflect a fundamental decision about the exercise of official power--a 
reluctance to entrust plenary powers over the life and liberty of the 
citizen to one judge or to a group of judges. Fear of unchecked power 
. . . found expression in the criminal law in this insistence upon 
community participation in the determination of guilt or 

        \48\Duncan v. Louisiana, 391, U.S. 145, 155-56 (1968). At other 
times the function of accurate factfinding has been emphasized. E.g., 
McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). While federal judges 
may comment upon the evidence, the right to a jury trial means that the 
judge must make clear to the jurors that such remarks are advisory only 
and that the jury is the final determiner of all factual questions. 
Quercia v. United States, 289 U.S. 466 (1933).

        Because ``a general grant of jury trial for serious offenses is 
a fundamental right, essential for preventing miscarriages of justice 
and for assuring that fair trials are provided for all defendants,'' the 
Sixth Amendment provision is binding on the States through the due 
process clause of the Fourteenth Amendment.\49\ But inasmuch as it 
cannot be said that every criminal trial or any particular trial which 
is held without a jury is unfair,\50\ it is possible for

[[Page 1408]]
a defendant to waive the right and go to trial before a judge alone.\51\

        \49\Duncan v. Louisiana, 391 U.S. 145, 158-59 (1968).
        \50\Id. at 159. Thus, state trials conducted before Duncan was 
decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631 
        \51\Patton v. United States, 281 U.S. 276 (1930). As with other 
waivers, this one must be by the express and intelligent consent of the 
defendant. A waiver of jury trial must also be with the consent of the 
prosecution and the sanction of the court. A refusal by either the 
prosecution or the court to defendant's request for consent to waive 
denies him no right since he then gets what the Constitution guarantees, 
a jury trial. Singer v. United States, 380 U.S. 24 (1965). It may be a 
violation of defendant's rights to structure the trial process so as 
effectively to encourage him ``needlessly'' to waive or to penalize the 
decision to go to the jury, but the standards here are unclear. Compare 
United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United 
States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S. 759 
(1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), 
cert. denied, 408 U.S. 942 (1972).

        The Attributes of the Jury.--It was previously the position of 
the Court that the right to a jury trial meant ``a trial by jury as 
understood and applied at common law, and includes all the essential 
elements as they were recognized in this country and England when the 
Constitution was adopted.''\52\ It had therefore been held that this 
included trial by a jury of 12 persons\53\ who must reach a unanimous 
verdict\54\ and that the jury trial must be held during the first court 
proceeding and not de novo at the first appellate stage.\55\ However, as 
it extended the guarantee to the States, the Court indicated that at 
least some of these standards were open to re-examination,\56\ and in 
subsequent cases it has done so. In Williams v. Florida,\57\ the Court 
held that the fixing of jury size at 12 was ``a historical accident'' 
which, while firmly established when the Sixth Amendment was proposed 
and ratified, was not required as an attribute of the jury system, 
either as a matter of

[[Page 1409]]
common-law background\58\ or by any ascertainment of the intent of the 
framers.\59\ Being bound neither by history nor framers' intent, the 
Court thought the ``relevant inquiry . . . must be the function that the 
particular feature performs and its relation to the purposes of the jury 
trial.'' The size of the jury, the Court continued, bore no discernable 
relationship to the purposes of jury trial--the prevention of oppression 
and the reliability of factfinding. Furthermore, there was little reason 
to believe that any great advantage accrued to the defendant by having a 
jury composed of 12 rather than six, which was the number at issue in 
the case, or that the larger number appreciably increased the variety of 
viewpoints on the jury. A jury should be large enough to promote group 
deliberation, free from outside attempts at intimidation, and to provide 
a fair possibility that a cross-section of the community will be 
represented on it, but the Court did not speculate whether there was a 
minimum permissible size and it recognized the propriety of conditioning 
jury size on the seriousness of the offense.\60\

        \52\Patton v. United States, 281 U.S. 276, 288 (1930).
        \53\Thompson v. Utah, 170 U.S. 343 (1898). Dicta in other cases 
was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900); 
Rassmussen v. United States, 197 U.S. 516, 519 (1905; Patton v. United 
States, 281 U.S. 276, 288 (1930).
        \54\Andres v. United States, 333 U.S. 740 (1948). See dicta in 
Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281 
U.S. 276, 288 (1930).
        \55\Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as 
being based on Article II, Sec. 2, as well as on the Sixth Amendment and 
being based on a more burdensome procedure, the Court in Ludwig v. 
Massachusetts, 427 U.S. 618 (1976), approved a state two-tier system 
under which persons accused of certain crimes must be tried in the first 
instance in the lower tier without a jury and if convicted may appeal to 
the second tier for a trial de novo by jury. Applying a due process 
standard, the Court, in an opinion by Justice Blackmun, found that 
neither the imposition of additional financial costs upon a defendant, 
nor the imposition of increased psychological and physical hardships of 
two trials, nor the potential of a harsher sentence on the second trial 
impermissibly burdened the right to a jury trial. Justices Stevens, 
Brennan, Stewart, and Marshall dissented. Id. at 632. See also North v. 
Russell, 427 U.S. 328 (1976).
        \56\Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); 
DeStefano v. Woods, 392 U.S. 631, 632-33 (1968).
        \57\399 U.S. 78 (1970). Justice Marshall would have required 
juries of 12 in both federal and state courts, id. at 116, while Justice 
Harlan contended that the Sixth Amendment required juries of 12, 
although his view of the due process standard was that the requirement 
was not imposed on the States. Id. at 117.
        \58\The development of 12 as the jury size is traced in 
Williams, 399 U.S. at 86-92.
        \59\Id. at 92-99. While the historical materials were scanty, 
the Court thought it more likely than not that the framers of the Bill 
of Rights did not intend to incorporate into the word ``jury'' all its 
common-law attributes. This conclusion was drawn from the extended 
dispute between House and Senate over inclusion of a ``vicinage'' 
requirement in the clause, which was a common law attribute, and the 
elimination of language attaching to jury trials their ``accustomed 
requisites.'' But see id. at 123 n.9 (Justice Harlan).
        \60\Id. at 99-103. In Ballew v. Georgia, 435 U.S. 223 (1978), 
the Court unanimously, but with varying expressions of opinion, held 
that conviction by a unanimous five-person jury in a trial for a 
nonpetty offense deprived an accused of his right to trial by jury. 
While readily admitting that the line between six and five members is 
not easy to justify, the Justices believed that reducing a jury to five 
persons in nonpetty cases raised substantial doubts as to the fairness 
of the proceeding and proper functioning of the jury to warrant drawing 
the line at six.

        When the unanimity rule was reconsidered, the division of the 
Justices was such that different results were reached for state and 
federal courts.\61\ Applying the same type of analysis as that used in 
Williams, four Justices acknowledged that unanimity was a common-law 
rule but observed for the reasons reviewed in Williams that it seemed 
more likely than not that the framers of the Sixth Amendment had not 
intended to preserve the requirement within the term ``jury.'' 
Therefore, the Justices undertook a functional

[[Page 1410]]
analysis of the jury and could not discern that the requirement of 
unanimity materially affected the role of the jury as a barrier against 
oppression and as a guarantee of a commonsense judgment of laymen. The 
Justices also determined that the unanimity requirement is not 
implicated in the constitutional requirement of proof beyond a 
reasonable doubt, and is not necessary to preserve the feature of the 
requisite cross-section representation on the jury.\62\ Four dissenting 
Justices thought that omitting the unanimity requirement would undermine 
the reasonable doubt standard, would permit a majority of jurors simply 
to ignore those interpreting the facts differently, and would permit 
oppression of dissenting minorities.\63\ Justice Powell, on the other 
hand, thought that unanimity was mandated in federal trials by history 
and precedent and that it should not be departed from; however, because 
it was the due process clause of the Fourteenth Amendment which imposed 
the basic jury-trial requirement on the States, he did not believe that 
it was necessary to impose all the attributes of a federal jury on the 
States. He therefore concurred in permitting less-than-unanimous 
verdicts in state courts.\64\

        \61\Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial 
held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968), and 
thus concerned whether the Sixth Amendment itself required jury 
unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972), involved a 
pre-Duncan trial and thus raised the question whether due process 
required jury unanimity. Johnson held, five-to-four, that the due 
process requirement of proof of guilt beyond a reasonable doubt was not 
violated by a conviction on a nine-to-three jury vote in a case in which 
punishment was necessarily at hard labor.
        \62\Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, 
Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun 
indicated a doubt that any closer division than nine-to-three in jury 
decisions would be permissible. Id. at 365.
        \63\Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 
395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall).
        \64\Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979), 
however, held that conviction by a non-unanimous six-person jury in a 
state criminal trial for a nonpetty offense, under a provision 
permitting conviction by five out of six jurors, violated the right of 
the accused to trial by jury. Acknowledging that the issue was ``close'' 
and that no bright line illuminated the boundary between permissible and 
impermissible, the Court thought the near-uniform practice throughout 
the Nation of requiring unanimity in six-member juries required 
nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 
323 (1980) (Burch held retroactive).

        Criminal Proceedings to Which the Guarantee Applies.--Although 
the Sixth Amendment provision does not differentiate among types of 
criminal proceedings in which the right to a jury trial is or is not 
present, the Court has always excluded petty offenses from the guarantee 
in federal courts, defining the line between petty and serious offenses 
either by the maximum punishment available\65\ or by the nature of the 
offense.\66\ This line has been adhered to in the application of the 
Sixth Amendment to the States\67\ and the Court has now held ``that no 
offense can be deemed `petty' for purposes of the right to trial by jury 
where im

[[Page 1411]]
prisonment for more than six months is authorized.''\68\ The Court has 
also made some changes in the meaning attached to the term ``criminal 
proceeding.'' Previously, it had been applied only to situations in 
which a person has been accused of an offense by information or 
presentment.\69\ Thus, a civil action to collect statutory penalties and 
punitive damages, because not technically criminal, has been held to 
implicate no right to jury trial.\70\ But more recently the Court has 
held denationalization to be punishment which Congress may not impose 
without adhering to the guarantees of the Fifth and Sixth 
Amendments,\71\ and the same type of analysis could be used with regard 
to other sanctions. In a long line of cases, the Court had held that no 
constitutional right to jury trial existed in trials of criminal 
contempt.\72\ But in Bloom v. Illinois,\73\ the Court announced that 
``[o]ur deliberations have convinced us . . . that serious contempts are 
so nearly like other serious crimes that they are subject to the jury 
trial provisions of the Constitution . . . and that the traditional rule 
is constitutionally infirm insofar as it permits other than petty 
contempts to be tried without honoring a demand for a jury trial.'' At 
least in state systems and probably in the federal system as well, there 
is no constitutional right

[[Page 1412]]
to a jury trial in juvenile proceedings.\74\ In capital cases there is 
no requirement that a jury impose the death penalty\75\ or make the 
factual findings upon which a death sentence must rest.\76\

        \65\District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick 
v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 
        \66\District of Columbia v. Colts, 282 U.S. 63 (1930).
        \67\Duncan v. Louisiana, 391 U.S. 145, 159-62 (1968); Dyke v. 
Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
        \68\Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black 
and Douglas would have required a jury trial in all criminal proceedings 
in which the sanction imposed bears the indicia of criminal punishment. 
Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386 
(1966) (dissenting). Chief Justice Burger and Justices Harlan and 
Stewart objected to setting this limitation at six months for the 
States, preferring to give them greater leeway. Baldwin, supra, at 76; 
Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury 
trial was required when the trial judge suspended sentence and placed 
defendant on probation for three years. Frank v. United States, 395 U.S. 
147 (1969). There is a presumption that offenses carrying a maximum 
imprisonment of six months or less are ``petty,'' although it is 
possible that such an offense could be pushed into the ``serious'' 
category if the legislature tacks on onerous penalties not involving 
incarceration. No jury trial is required, however, when the maximum 
sentence is six months in jail, a fine not to exceed $1,000, a 90-day 
driver's license suspension, and attendance at an alcohol abuse 
education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542-
44 (1989).
        \69\United States v. Zucker, 161 U.S. 475, 481 (1896).
        \70\Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 
U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).
        \71\Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
        \72\E.g., Green v. United States, 356 U.S. 165, 183-87 (1958), 
and cases cited; United States v. Burnett, 376 U.S. 681, 692-700 (1964), 
and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 
373 (1966), held, asserting the Court's supervisory power over the lower 
federal courts, that criminal contempt sentences in excess of six months 
imprisonment could not be imposed without a jury trial or adequate 
        \73\391 U.S. 194, 198 (1968). Justices Harlan and Stewart 
dissented. Id. at 215. As in other cases, the Court drew the line 
between serious and petty offenses at six months, but because, unlike 
other offenses, no maximum punishments are usually provided for 
contempts it indicated the actual penalty imposed should be looked to. 
Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 
        \74\McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
        \75\Spaziano v. Florida, 468 U.S. 447, 459 (1984).
        \76\Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (per curiam) 
(``the Sixth Amendment does not require that the specific findings 
authorizing the imposition of the sentence of death be made by the 
jury''); Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court 
may reweigh aggravating and mitigating factors and uphold imposition of 
death penalty even though jury relied on an invalid aggravating factor); 
Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite 
findings as to existence of aggravating and mitigating circumstances).
      Impartial Jury

        Impartiality as a principle of the right to trial by jury is 
served not only by the Sixth Amendment, which is as applicable to the 
States as to the Federal Government,\77\ but as well by the due process 
and equal protection clauses of the Fourteenth,\78\ and perhaps the due 
process clause of the Fifth Amendment, and the Court's supervisory power 
has been directed to the issue in the federal system.\79\ Prior to the 
Court's extension of a right to jury trials in state courts, it was 
firmly established that if a State chose to provide juries they must be 
impartial ones.\80\

        \77\Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 
U.S. 466 (1965); Parker v. Gladden, 385 U.S. 363 (1966); Witherspoon v. 
Illinois, 391 U.S. 510 (1968); Gonzales v. Beto, 405 U.S. 1052 (1972).
        \78\Thus, it violates the Equal Protection Clause to exclude 
African Americans from grand and petit juries, Strauder v. West 
Virginia, 100 U.S. 303 (1880); Alexander v. Louisiana, 405 U.S. 625 
(1972), whether defendant is or is not an African American, Peters v. 
Kiff, 407 U.S. 493 (1972), and exclusion of potential jurors because of 
their national ancestry is unconstitutional, at least where defendant is 
of that ancestry as well, Hernandez v. Texas, 347 U.S. 475 (1954); 
Castaneda v. Partida, 430 U.S. 482 (1977).
        \79\In the exercise of its supervisory power over the federal 
courts, the Court has permitted any defendant to challenge the arbitrary 
exclusion from jury service of his own or any other class. Glasser v. 
United States, 315 U.S. 60, 83-87 (1942); Thiel v. Southern Pacific Co., 
328 U.S. 217, 220 (1946); Ballard v. United States, 329 U.S. 187 (1946). 
In Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439 
U.S. 357 (1979), male defendants were permitted to challenge the 
exclusion of women as a Sixth Amendment violation.
        \80\Turner v. Louisiana, 379 U.S. 466 (1965).

        Impartiality is a two-fold requirement. First, ``the selection 
of a petit jury from a representative cross section of the community is 
an essential component of the Sixth Amendment.''\81\ This re

[[Page 1413]]
quirement applies only to jury panels or venires from which petit juries 
are chosen, and not to the composition of the petit juries 
themselves.\82\ ``In order to establish a prima facie violation of the 
fair-cross-section requirement, the defendant must show (1) that the 
group alleged to be excluded is a `distinctive' group in the community; 
(2) that the representation of this group in venires from which juries 
are selected is not fair and reasonable in relation to the number of 
such persons in the community; and (3) that this underrepresentation is 
due to systematic exclusion of the group in the jury-selection 
process.''\83\ Thus, in one case the Court voided a selection system 
under which no woman would be called for jury duty unless she had 
previously filed a written declaration of her desire to be subject to 
service, and, in another it invalidated a state selection system 
granting women who so requested an automatic exemption from jury 
service.\84\ While disproportion alone is insufficient to establish a 
prima facie showing of unlawful exclusion, a statistical showing of 
disparity combined with a demonstration of the easy manipulability of 
the selection process can make out a prima facie case.\85\

        \81\Taylor v. Louisiana, 419 U.S. 522, 528 (1975). See also 
Williams v. Florida, 399 U.S. 78, 100 (1970); Brown v. Allen, 344 U.S. 
443, 474 (1953). In Fay v. New York, 332 U.S. 261 (1947), and Moore v. 
New York, 333 U.S. 565 (1948), the Court in 5-to-4 decisions upheld 
state use of ``blue ribbon'' juries from which particular groups, such 
as laborers and women, had been excluded. With the extension of the jury 
trial provision and its fair cross section requirement to the States, 
the opinions in these cases must be considered tenuous, but the Court 
has reiterated that defendants are not entitled to a jury of any 
particular composition. Taylor, supra, at 538. Congress has implemented 
the constitutional requirement by statute in federal courts by the 
Federal Jury Selection and Service Act of 1968, Pub. L. No. 90-274, 82 
Stat. 53, 28 U.S.C. Sec. Sec. 1861 et seq.
        \82\Lockhart v. McCree, 476 U.S. 162 (1986). ``We have never 
invoked the fair cross-section principle to invalidate the use of either 
for-cause or peremptory challenges to prospective jurors, or to require 
petit juries, as opposed to jury panels or venires, to reflect the 
composition of the community at large.'' 476 U.S. at 173. The 
explanation is that the fair cross-section requirement ``is a means of 
assuring, not a representative jury (which the Constitution does not 
demand), but an impartial one (which it does).'' Holland v. Illinois, 
493 U.S. 474, 480 (1990) (emphasis original).
        \83\Duren v. Missouri, 439 U.S. 357, 364 (1979).
        \84\Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 
439 U.S. 357 (1979).
        \85\Castaneda v. Partida, 430 U.S. 482 (1977) (Mexican-American 
defendant successfully made out prima facie case of intentional 
exclusion of persons of his ethnic background by showing a substantial 
underrepresentation of Mexican-Americans based on a comparison of the 
group's proportion in the total population of eligible jurors to the 
proportion called, and this in the face of the fact that Mexican-
Americans controlled the selection process).

        Second, there must be assurance that the jurors chosen are 
unbiased, i.e., willing to decide the case on the basis of the evidence 
presented. The Court has held that in the absence of an actual showing 
of bias, a defendant in the District of Columbia is not denied an 
impartial jury when he is tried before a jury composed primarily of 
government employees.\86\ A violation of a defendant's

[[Page 1414]]
right to an impartial jury does occur, however, when the jury or any of 
its members is subjected to pressure or influence which could impair 
freedom of action; the trial judge should conduct a hearing in which the 
defense participates to determine whether impartiality has been 
undermined.\87\ Exposure of the jury to possibly prejudicial material 
and disorderly courtroom activities may deny impartiality and must be 
inquired into.\88\ Private communications, contact, or tampering with a 
jury, or the creation of circumstances raising the dangers thereof, is 
not to be condoned.\89\ When the locality of the trial has been 
saturated with publicity about a defendant, so that it is unlikely that 
he can obtain a disinterested jury, he is constitutionally entitled to a 
change of venue.\90\ It is undeniably a violation of due process to 
subject a defendant to trial in an atmosphere of mob or threatened mob 

        \86\Frazier v. United States, 335 U.S. 497 (1948); Dennis v. 
United States, 339 U.S. 162 (1950). On common-law grounds, the Court in 
Crawford v. United States, 212 U.S. 183 (1909), disqualified such 
employees, but a statute removing the disqualification because of the 
increasing difficulty in finding jurors in the District of Columbia was 
sustained in United States v. Wood, 299 U.S. 123 (1936).
        \87\Remmer v. United States, 350 U.S. 377 (1956) (attempted 
bribe of a juror reported by him to authorities); Smith v. Phillips, 455 
U.S. 209 (1982) (during trial one of the jurors had been actively 
seeking employment in the District Attorney's office).
        \88\E.g., Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. 
Maxwell, 384 U.S. 333 (1966). Exposure of the jurors to knowledge about 
the defendant's prior criminal record and activities is not alone 
sufficient to establish a presumption of reversible prejudice, but on 
voir dire jurors should be questioned about their ability to judge 
impartially. Murphy v. Florida, 421 U.S. 794 (1975). The Court indicated 
that under the same circumstances in a federal trial it would have 
overturned the conviction pursuant to its supervisory power. Id. at 797-
98, citing Marshall v. United States, 360 U.S. 310 (1959). Essentially, 
the defendant must make a showing of prejudice which the court then may 
inquire into. Chandler v. Florida, 449 U.S. 560, 575, 581 (1981); Smith 
v. Phillips, 455 U.S. 209, 215-18 (1982); Patton v. Yount, 467 U.S. 1025 
        \89\Remmer v. United States, 347 U.S. 227 (1954). See Turner v. 
Louisiana, 379 U.S. 466 (1965) (placing jury in charge of two deputy 
sheriffs who were principal prosecution witnesses at defendant's jury 
trial denied him his right to an impartial jury); Parker v. Gladden, 385 
U.S. 363 (1966) (influence on jury by prejudiced bailiff). Cf. Gonzales 
v. Beto, 405 U.S. 1052 (1972).
        \90\Irvin v. Dowd, 366 U.S. 717 (1961) (felony); Groppi v. 
Wisconsin, 400 U.S. 505 (1971) (misdemeanor).
        \91\Frank v. Mangum, 237 U.S. 309 (1915); Irvin v. Dowd, 366 
U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S. 333 (1966).

        Because it is too much to expect that jurors can remain 
uninfluenced by evidence they receive even though they are instructed to 
use it for only a limited purpose and to disregard it for other 
purposes, the Court will not permit a confession to be submitted to the 
jury without a prior determination by the trial judge that it is 
admissible. A defendant is denied due process, therefore, if he is 
convicted by a jury that has been instructed to first determine the 
voluntariness of a confession and then to disregard the confession if it 
is found to be inadmissible.\92\ Similarly invalid is a jury instruction 
in a joint trial to consider a confession only with regard

[[Page 1415]]
to the defendant against whom it is admissible, and to disregard that 
confession as against a co-defendant which it implicates.\93\

        \92\Jackson v. Denno, 378 U.S. 368 (1964) (overruling Stein v. 
New York, 346 U.S. 156 (1953)).
        \93\Bruton v. United States, 391 U.S. 123 (1968) (overruling 
Delli Paoli v. United States, 352 U.S. 232 (1957)). The rule applies to 
the States. Roberts v. Russell, 392 U.S. 293 (1968). But see Nelson v. 
O'Neil, 402 U.S. 622 (1971) (co-defendant's out-of-court statement is 
admissible against defendant if co-defendant takes the stand and denies 
having made the statement).

        In Witherspoon v. Illinois,\94\ the Court held that the 
exclusion in capital cases of jurors conscientiously scrupled about 
capital punishment, without inquiring whether they could consider the 
imposition of the death penalty in the appropriate case, violated a 
defendant's constitutional right to an impartial jury. Inasmuch as the 
jury is given broad discretion whether or not to fix the penalty at 
death, the Court ruled, the jurors must reflect ``the conscience of the 
community'' on the issue, and the automatic exclusion of all scrupled 
jurors ``stacked the deck'' and made of the jury a tribunal ``organized 
to return a verdict of death.''\95\ A court may not refuse a defendant's 
request to examine potential jurors to determine whether they would vote 
automatically to impose the death penalty; general questions about 
fairness and willingness to follow the law are inadequate.\96\

        \94\391 U.S. 510 (1968).
        \95\Id. at 519, 521, 523. The Court thought the problem went 
only to the issue of the sentence imposed and saw no evidence that a 
jury from which death scrupled persons had been excluded was more prone 
to convict than were juries on which such person sat. Cf. Bumper v. 
North Carolina, 391 U.S. 543, 545 (1968). The Witherspoon case was given 
added significance when in Woodson v. North Carolina, 428 U.S. 280 
(1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held 
mandatory death sentences unconstitutional and ruled that the jury as a 
representative of community mores must make the determination as guided 
by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980) 
(holding Witherspoon applicable to bifurcated capital sentencing 
procedures and voiding a statute permitting exclusion of any juror 
unable to swear that the existence of the death penalty would not affect 
his deliberations on any issue of fact).
        \96\Morgan v. Illinois, 112 S. Ct. 2222 (1992).

        The proper standard for exclusion is ``whether the juror's views 
would `prevent or substantially impair the performance of his duties as 
a juror in accordance with his instructions and his oath.'''\97\ Thus 
the juror need not indicate that he would ``automatically'' vote against 
the death penalty, and his ``bias [need not] be proved with 
`unmistakable clarity.'''\98\ Persons properly excludable under 
Witherspoon may also be excluded from the guilt/innocence phase of a 
bifurcated capital trial.\99\ It had been argued that to exclude such 
persons from the guilt/innocence phase would result in a jury

[[Page 1416]]
somewhat more predisposed to convict, and that this would deny the 
defendant a jury chosen from a fair cross-section. The Court rejected 
this, concluding that ``it is simply not possible to define jury 
impartiality . . . by reference to some hypothetical mix of individual 
viewpoints.''\100\ Moreover, the state has ``an entirely proper interest 
in obtaining a single jury that could impartially decide all of the 
issues in [a] case,'' and need not select separate panels and duplicate 
evidence for the two distinct but interrelated functions.\101\ For the 
same reasons, there is no violation of the right to an impartial jury if 
a defendant for whom capital charges have been dropped is tried, along 
with a codefendant still facing capital charges, before a ``death 
qualified'' jury.\102\

        \97\Wainwright v. Witt, 469 U.S. 412, 424 (1985), (quoting Adams 
v. Texas, 448 U.S. 38, 45 (1980)).
        \98\Wainwright v. Witt, 469 U.S. at 424. Accord, Darden v. 
Wainwright, 477 U.S. 168 (appropriateness of exclusion should be 
determined by context, including excluded juror's understanding based on 
previous questioning of other jurors).
        \99\Lockhart v. McCree, 476 U.S. 162 (1986).
        \100\476 U.S. at 183.
        \101\Id. at 180.
        \102\Buchanan v. Kentucky, 483 U.S. 402 (1987).

        Exclusion of one juror qualified under Witherspoon constitutes 
reversible error, and the exclusion may not be subjected to harmless 
error analysis.\103\ However, a court's error in refusing to dismiss for 
cause a prospective juror prejudiced in favor of the death penalty does 
not deprive a defendant of his right to trial by an impartial jury if he 
is able to exclude the juror through exercise of a peremptory 
challenge.\104\ The relevant inquiry is ``on the jurors who ultimately 
sat,'' the Court declared, rejecting as overly broad the assertion in 
Gray that the focus instead should be on ```whether the composition of 
the jury panel as a whole could have been affected by the trial court's 

        \103\Gray v. Mississippi, 481 U.S. 648 (1987).
        \104\Ross v. Oklahoma, 487 U.S. 81 (1987).
        \105\Id. at 86, 87.

        It is the function of the voir dire to give the defense and the 
prosecution the opportunity to inquire into, or have the trial judge 
inquire into, possible grounds of bias or prejudice that potential 
jurors may have, and to acquaint the parties with the potential 
jurors.\106\ It is good ground for challenge for cause that a juror has 
formed an opinion on the issue to be tried, but not every opinion which 
a juror may entertain necessarily disqualifies him. The judge must 
determine whether the nature and strength of the opinion raise a 
presumption against impartiality.\107\ It suffices for the judge to 
question potential jurors about their ability to put aside what they had 
heard or read about the case, listen to the evidence with an open mind, 
and render an impartial verdict; the judge's refusal to go further and 
question jurors about the contents of news

[[Page 1417]]
reports to which they had been exposed did not violate the Sixth 
Amendment.\108\ Under some circumstances, it may be constitutionally 
required that questions specifically directed to the existence of racial 
bias must be asked. Thus, in a situation in which defendant, a black 
man, alleged that he was being prosecuted on false charges because of 
his civil rights activities in an atmosphere perhaps open to racial 
appeals, prospective jurors must be asked about their racial prejudice, 
if any.\109\ A similar rule applies in some capital trials, where the 
risk of racial prejudice ``is especially serious in light of the 
complete finality of the death sentence.'' A defendant accused of an 
interracial capital offense is entitled to have prospective jurors 
informed of the victim's race and questioned as to racial bias.\110\ But 
in circumstances not suggesting a significant likelihood of racial 
prejudice infecting a trial, as when the facts are merely that the 
defendant is black and the victim white, the Constitution is satisfied 
by a more generalized but thorough inquiry into the impartiality of the 

        \106\Lewis v. United States, 146 U.S. 370 (1892); Pointer v. 
United States, 151 U.S. 396 (1894).
        \107\Reynolds v. United States, 98 U.S. 145 (1879). See 
Witherspoon v. Illinois, 391 U.S. 510, 513-15, 522 n.21 (1968).
        \108\Mu'Min v. Virginia, 500 U.S. 415 (1991).
        \109\Ham v. South Carolina, 409 U.S. 524 (1973).
        \110\Turner v. Murray, 476 U.S. 28 (1986). The quote is from a 
section of Justice White's opinion not adopted as opinion of the Court. 
Id. at 35.
        \111\Ristaino v. Ross, 424 U.S. 589 (1976). The Court noted that 
under its supervisory power it would require a federal court faced with 
the same circumstances to propound appropriate questions to identify 
racial prejudice if requested by the defendant. Id. at 597 n.9. See 
Aldridge v. United States, 283 U.S. 308 (1931). But see Rosales-Lopez v. 
United States, 451 U.S. 182 (1981), in which the trial judge refused a 
defense request to inquire about possible bias against Mexicans. A 
plurality apparently adopted a rule that, all else being equal, the 
judge should necessarily inquire about racial or ethnic prejudice only 
in cases of violent crimes in which the defendant and victim are members 
of different racial or ethnic groups, id. at 192, a rule rejected by two 
concurring Justices. Id. at 194. Three dissenting Justices thought the 
judge must always ask when defendant so requested. Id. at 195.

        Although government is not constitutionally obligated to allow 
peremptory challenges, typically a system of peremptory challenges has 
existed in criminal trials, in which both prosecution and defense may, 
without stating any reason, excuse a certain number of prospective 
jurors.\112\ While, in Swain v. Alabama,\113\ the Court held that a 
prosecutor's purposeful exclusion of members of a specific racial group 
from the jury would violate the Equal Protection Clause, it posited so 
difficult a standard of proof that defendants could seldom succeed. The 
Swain standard of proof was relaxed in Batson v. Kentucky,\114\ with the 
result that a defendant may now establish an equal protection violation 
resulting from a prosecutor's

[[Page 1418]]
use of peremptory challenges to systematically exclude blacks from the 
jury.\115\ A violation can occur whether or not the defendant and the 
excluded jurors are of the same race.\116\ Racially discriminatory use 
of peremptory challenges does not, however, constitute a violation of 
the Sixth Amendment, the Court ruled in Holland v. Illinois.\117\ The 
Sixth Amendment ``no more forbids the prosecutor to strike jurors on the 
basis of race than it forbids him to strike them on the basis of 
innumerable other generalized characteristics.''\118\ To rule otherwise, 
the Court reasoned, ``would cripple the device of peremptory challenge'' 
and thereby undermine the Amendment's goal of ``impartiality with 
respect to both contestants.''\119\

        \112\Cf. Stilson v. United States, 250 U.S. 583, 586 (1919), an 
older case holding that it is no violation of the guarantee to limit the 
number of peremptory challenges to each defendant in a multi-party 
        \113\380 U.S. 202 (1965).
        \114\476 U.S. 79 (1986).
        \115\See discussion under ``Equal Protection and Race,'' infra 
        \116\Powers v. Ohio, 499 U.S. 400 (1991) (defendant has standing 
to raise equal protection rights of excluded juror of different race).
        \117\493 U.S. 474 (1990). But see Trevino v. Texas, 112 S. Ct. 
1547 (1992) (claim of Sixth Amendment violation resulting from racially 
discriminatory use of peremptory challenges treated as sufficient to 
raise equal protection claim under Swain and Batson).
        \118\493 U.S. at 487.
        \119\Id. at 484. As a consequence, a defendant who uses a 
peremptory challenge to correct the court's error in denying a for-cause 
challenge may have no Sixth Amendment cause of action. Peremptory 
challenges ``are a means to achieve the end of an impartial jury. So 
long as the jury that sits is impartial, the fact that the defendant had 
to use a peremptory challenge to achieve that result does not mean the 
Sixth Amendment was violated.'' Ross v. Oklahoma, 487 U.S. 81, 88 
(1987). Similarly, there is no due process violation, at least where 
state statutory law requires use of peremptory challenges to cure 
erroneous refusals by the court to excuse jurors for cause. ``It is for 
the State to determine the number of peremptory challenges allowed and 
to define their purpose and the manner of their exercise.'' Id.

        The restraint on racially discriminatory use of peremptory 
challenges is now a two-way street. The Court ruled in 1992 that a 
criminal defendant's use of peremptory challenges to exclude jurors on 
the basis of race constitutes ``state action'' in violation of the Equal 
Protection Clause.\120\ Disputing the contention that this limitation 
would undermine ``the contribution of the peremptory challenge to the 
administration of justice,'' the Court nonetheless asserted that such a 
result would in any event be ``too high'' a price to pay. ``It is an 
affront to justice to argue that a fair trail includes the right to 
discriminate against a group of citizens based upon their race.''\121\ 
It followed, therefore, that the limitation on peremptory challenges 
does not violate a defendant's right to an impartial jury. While a 
defendant has ``the right to an impartial jury that can view him without 
racial animus,'' this means that ``there should be a mechanism for 
removing those [jurors] who would be incapable of confronting and 
suppressing their racism,'' not that the defendant may remove jurors on 
the basis of race or racial stereotypes.\122\

        \120\Georgia v. McCollum, 112 S. Ct. 2348 (1992).
        \121\Id. at 2358.
        \122\Id. at 2358-59.

[[Page 1419]]

                             SIXTH AMENDMENT



        Article III, Sec. 2 requires that federal criminal cases be 
tried by jury in the State and district in which the offense was 
committed,\123\ but much criticism arose over the absence of any 
guarantee that the jury be drawn from the ``vicinage'' or neighborhood 
of the crime.\124\ Madison's efforts to write into the Bill of Rights an 
express vicinage provision were rebuffed by the Senate, and the present 
language was adopted as a compromise.\125\ The provisions limit the 
Federal Government only.\126\

        \123\``The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury; and such Trial shall be held in the State where the 
said Crime shall have been committed; but when not committed within any 
State, the Trial shall be at such Place or Places as the Congress may by 
law have directed.''
        \124\``Vicinage'' means neighborhood, and ``vicinage of the 
jury'' means jury of the neighborhood or, in medieval England, jury of 
the County. 4 W. Blackstone, Commentaries on the Laws of England *350-
351 (T. Cooley 4th ed. 1899). See 3 J. Story, Commentaries on the 
Constitution of the United States 1775-85 (1833).
        \125\The controversy is conveniently summarized in Williams v. 
Florida, 399 U.S. 78, 92-96 (1970).
        \126\Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96, 101 

        An accused cannot be tried in one district under an indictment 
showing that the offense was committed in another;\127\ the place where 
the offense is charged to have been committed determines the place of 
trial.\128\ In a prosecution for conspiracy, the accused may be tried in 
any State and district where an overt act was performed.\129\ Where a 
United States Senator was indicted for agreeing to receive compensation 
for services to be rendered in a proceeding before a government 
department, and it appeared that a tentative arrangement for such 
services was made in Illinois and confirmed in St. Louis, the defendant 
was properly tried in St. Louis, although he was not physically present 
in Missouri when notice of ratification was dispatched.\130\ The offense 
of obtaining transportation of property in interstate commerce at less 
than the carrier's published rates,\131\ or the sending of excluded 
matter through the mails,\132\ may be made triable in any district 
through which the forbidden transportation is conducted. By virtue of a 
presumption that a letter is delivered in the district to which it is 
addressed, the offense of scheming to defraud a corporation by mail

[[Page 1420]]
was held to have been committed in that district although the letter was 
posted elsewhere.\133\ The Constitution does not require any preliminary 
hearing before issuance of a warrant for removal of an accused to the 
court having jurisdiction of the charge.\134\ The assignment of a 
district judge from one district to another, conformably to statute, 
does not create a new judicial district whose boundaries are undefined 
nor subject the accused to trial in a district not established when the 
offense with which he is charged was committed.\135\ For offenses 
against federal laws not committed within any State, Congress has the 
sole power to prescribe the place of trial; such an offense is not local 
and may be tried at such place as Congress may designate.\136\ The place 
of trial may be designated by statute after the offense has been 

        \127\Salinger v. Loisel, 265 U.S. 224 (1924).
        \128\Beavers v. Henkel, 194 U.S. 73, 83 (1904). For some more 
recent controversies about the place of the commission of the offense, 
see United States v. Cores, 356 U.S. 405 (1958), and Johnston v. United 
States, 351 U.S. 215 (1956).
        \129\Brown v. Elliott, 225 U.S. 392 (1912); Hyde v. United 
States, 225 U.S. 347 (1912); Haas v. Henkel, 216 U.S. 462 (1910).
        \130\Burton v. United States, 202 U.S. 344 (1906).
        \131\Armour Packing Co. v. United States, 209 U.S. 56 (1908).
        \132\United States v. Johnson, 323 U.S. 273, 274 (1944).
        \133\Hagner v. United States, 285 U.S. 427, 429 (1932).
        \134\United States ex rel. Hughes v. Gault, 271 U.S. 142 (1926). 
Cf. Tinsley v. Treat, 205 U.S. 20 (1907); Beavers v. Henkel, 194 U.S. 
73, 84 (1904).
        \135\Lamar v. United States, 241 U.S. 103 (1916).
        \136\Jones v. United States, 137 U.S. 202, 211 (1890); United 
States v. Dawson, 56 U.S. (15 How.) 467, 488 (1853).
        \137\Cook v. United States, 138 U.S. 157, 182 (1891). See also 
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250-54 (1940); 
United States v. Johnson, 323 U.S. 273 (1944).

                             SIXTH AMENDMENT


                          NOTICE OF ACCUSATION

        The constitutional right to be informed of the nature and cause 
of the accusation entitles the defendant to insist that the indictment 
apprise him of the crime charged with such reasonable certainty that he 
can make his defense and protect himself after judgment against another 
prosecution on the same charge.\138\ No indictment is sufficient if it 
does not allege all of the ingredients that constitute the crime. Where 
the language of a statute is, according to the natural import of the 
words, fully descriptive of the offense, it is sufficient if the 
indictment follows the statutory phraseology,\139\ but where the 
elements of the crime have to be ascertained by reference to the common 
law or to other statutes, it is not sufficient to set forth the offense 
in the words of the statute. The facts necessary to bring the case 
within the statutory definition must also be alleged.\140\ If an offense 
cannot be accurately and clearly described without an allegation that 
the accused is not within an exception contained in the statutes, an 
indictment which does not contain such allegation is defective.\141\ 
Despite the omission of obscene particulars, an indictment in general 
language is good if the

[[Page 1421]]
unlawful conduct is described so as reasonably to inform the accused of 
the nature of the charge sought to be established against him.\142\ The 
Constitution does not require the Government to furnish a copy of the 
indictment to an accused.\143\ The right to notice of accusation is so 
fundamental a part of procedural due process that the States are 
required to observe it.\144\

        \138\United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); 
United States v. Simmons, 96 U.S. 360 (1878); Bartell v. United States, 
227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906).
        \139\Potter v. United States, 155 U.S. 438, 444 (1894).
        \140\United States v. Carll, 105 U.S. 611 (1882).
        \141\United States v. Cook, 84 U.S. (17 Wall.) 168, 174 (1872).
        \142\Rosen v. United States, 161 U.S. 29, 40 (1896).
        \143\United States v. Van Duzee, 140 U.S. 169, 173 (1891).
        \144\In re Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkansas, 
333 U.S. 196, 201 (1948); Rabe v. Washington, 405 U.S. 313 (1972).

                             SIXTH AMENDMENT



        ``The primary object of the constitutional provision in question 
was to prevent depositions of ex parte affidavits . . . being used 
against the prisoner in lieu of a personal examination and cross-
examination of the witness in which the accused has an opportunity not 
only of testing the recollection and sifting the conscience of the 
witness, but of compelling him to stand face to face with the jury in 
order that they may look at him, and judge by his demeanor upon the 
stand and the manner in which he gives his testimony whether he is 
worthy of belief''\145\ The right of confrontation is ``[o]ne of the 
fundamental guarantees of life and liberty . . . long deemed so 
essential for the due protection of life and liberty that it is guarded 
against legislative and judicial action by provisions in the 
Constitution of the United States and in the constitutions of most if 
not of all the States composing the Union.''\146\ Before 1965, when the 
Court held the right to be protected against state abridgment,\147\ it 
had little need to clarify the relationship between the right of 
confrontation and the hearsay rule,\148\ inasmuch as its supervisory 
powers over the inferior federal courts permitted it to control the 
admission of hearsay on this basis.\149\ Thus, on the basis of the 
Confrontation Clause, it had concluded that evidence given at a 
preliminary hearing could not be used at the trial if the

[[Page 1422]]
absence of the witness was attributable to the negligence of the 
prosecution,\150\ but that if a witness' absence had been procured by 
the defendant, testimony given at a previous trial on a different 
indictment could be used at the subsequent trial.\151\ It had also 
recognized the admissibility of dying declarations\152\ and of testimony 
given at a former trial by a witness since deceased.\153\ The 
prosecution was not permitted to use a judgment of conviction against 
other defendants on charges of theft in order to prove that the property 
found in the possession of defendant now on trial was stolen.\154\

        \145\Mattox v. United States, 156 U.S. 237, 242-43 (1895).
        \146\Kirby v. United States, 174 U.S. 47, 55, 56 (1899). Cf. 
Pointer v. Texas, 380 U.S. 400, 404-05 (1965). The right may be waived 
but it must be a knowing, intelligent waiver uncoerced from defendant. 
Brookhart v. Janis, 384 U.S. 1 (1966).
        \147\Pointer v. Texas, 380 U.S. 400 (1965) (overruling West v. 
Louisiana, 194 U.S. 258 (1904)); see also Stein v. New York, 346 U.S. 
156, 195-96 (1953).
        \148\Hearsay is the prior out-of-court statements of a person, 
offered affirmatively for the truth of the matters asserted, presented 
at trial either orally by another person or in written form. Hickory v. 
United States, 151 U.S. 303, 309 (1894); Southern Ry. v. Gray, 241 U.S. 
333, 337 (1916); Bridges v. Wixon, 326 U.S. 135 (1945).
        \149\Thus, while it had concluded that the co-conspirator 
exception to the hearsay rule was consistent with the Confrontation 
Clause, Delaney v. United States, 263 U.S. 586, 590 (1924), the Court's 
formulation of the exception and its limitations was pursuant to its 
supervisory powers. Lutwak v. United States, 344 U.S. 604 (1953); 
Krulewitch v. United States, 336 U.S. 440 (1949).
        \150\Motes v. United States, 178 U.S. 458 (1900).
        \151\Reynolds v. United States, 98 U.S. 145 (1879).
        \152\Kirby v. United States, 174 U.S. 47, 61 (1899); Robertson 
v. Baldwin, 165 U.S. 275, 282 (1897).
        \153\Mattox v. United States, 156 U.S. 237, 240 (1895).
        \154\Kirby v. United States, 174 U.S. 47 (1899), and Dowdell v. 
United States, 221 U.S. 325 (1911), recognized the inapplicability of 
the clause to the admission of documentary evidence to establish 
collateral facts, admissible under the common law, to permit 
certification as an additional record to the appellate court of the 
events of the trial.

        In a series of decisions beginning in 1965, the Court seemed to 
equate the Confrontation Clause with the hearsay rule, positing that a 
major purpose of the clause was ``to give the defendant charged with 
crime an opportunity to cross-examine the witnesses against him,'' 
unless one of the hearsay exceptions applies.\155\ Thus, in Pointer v. 
Texas,\156\ the complaining witness had testified at a preliminary 
hearing at which he was not cross-examined and the defendant was not 
represented by counsel; by the time of trial, the witness had moved to 
another State and the prosecutor made no effort to obtain his return. 
Offering the preliminary hearing testimony violated defendant's right of 
confrontation. In Douglas v.

[[Page 1423]]
Alabama,\157\ the prosecution called as a witness the defendant's 
alleged accomplice, and when the accomplice refused to testify, pleading 
his privilege against self-incrimination, the prosecutor read to him to 
``refresh'' his memory a confession in which he implicated defendant. 
Because defendant could not cross-examine the accomplice with regard to 
the truth of the confession, the Court held the Confrontation Clause had 
been violated. In Bruton v. United States,\158\ the use at a joint trial 
of a confession made by one of the defendants was held to violate the 
confrontation rights of the other defendant who was implicated by it 
because he could not cross-examine the codefendant not taking the 
stand.\159\ The Court continues to view as ``presumptively unreliable 
accomplices' confessions that incriminate defendants.''\160\

        \155\Pointer v. Texas, 380 U.S. 400, 406-07 (1965); Douglas v. 
Alabama, 380 U.S. 415, 418 (1965). ``The right to confrontation is 
basically a trial right. It includes both the opportunity to cross-
examine and the occasion for the jury to weigh the demeanor of the 
witness.'' Barber v. Page, 390 U.S. 719, 725 (1968). Unjustified 
limitation of defendant's right to cross-examine witnesses presented 
against him at trial may constitute a confrontation clause violation. 
Smith v. Illinois, 390 U.S. 129 (1968), or a denial of due process, 
Alford v. United States, 282 U.S. 687 (1931); and In re Oliver, 333 U.S. 
257 (1948).
        \156\380 U.S. 400 (1965). Justices Harlan and Stewart concurred 
on due process grounds, rejecting the ``incorporation'' holding. Id. at 
408, 409. See also Barber v. Page, 390 U.S. 719 (1968), in which the 
Court refused to permit the State to use the preliminary hearing 
testimony of a witness in a federal prison in another State at the time 
of trial. The Court acknowledged the hearsay exception permitting the 
use of such evidence when a witness was unavailable but refused to find 
him ``unavailable'' when the State had made no effort to procure him; 
Mancusi v. Stubbs, 408 U.S. 204 (1972), in which the Court permitted the 
State to assume the unavailability of a witness because he now resided 
in Sweden and to use the transcript of the witness' testimony at a 
former trial.
        \157\380 U.S. 415 (1965). See also Smith v. Illinois, 390 U.S. 
129 (1968) (informer as prosecution witness permitted to identify 
himself by alias and to conceal his true name and address; Confrontation 
Clause violated because defense could not effectively cross-examine); 
Davis v. Alaska, 415 U.S. 308 (1974) (state law prohibiting disclosure 
of identity of juvenile offenders could not be applied to preclude 
cross-examination of witness about his juvenile record when object was 
to allege possible bias on part of witness). Cf. Chambers v. 
Mississippi, 410 U.S. 284 (1973); United States v. Nobles, 422 U.S. 233, 
240-41 (1975).
        \158\391 U.S. 123 (1968). The Court in this case equated 
confrontation with the hearsay rule, first emphasizing ``that the 
hearsay statement inculpating petitioner was clearly inadmissible 
against him under traditional rules of evidence'', id. at 128 n.3, and 
then observing that ``[t]he reason for excluding this evidence as an 
evidentiary matter also requires its exclusion as a constitutional 
matter.'' Id. at 136 n.12 (emphasis by Court). Bruton was applied 
retroactively in a state case in Roberts v. Russell, 392 U.S. 293 
(1968). Where, however, the codefendant takes the stand in his own 
defense, denies making the alleged out-of-court statement implicating 
defendant, and proceeds to testify favorably to the defendant concerning 
the underlying facts, the defendant has not been denied his right of 
confrontation under Bruton, Nelson v. O'Neil, 402 U.S. 622 (1971). In 
two cases, violations of the rule in Bruton have been held to be 
``harmless error'' in the light of the overwhelming amount of legally 
admitted evidence supporting conviction. Harrington v. California, 395 
U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Bruton was 
held inapplicable, however, when the nontestifying codefendant's 
confession was redacted to omit any reference to the defendant, and was 
circumstantially incriminating only as the result of other evidence 
properly introduced. Richardson v. Marsh, 481 U.S. 200 (1987).
        \159\In Parker v. Randolph, 442 U.S. 62 (1979), the Court was 
evenly divided on the question whether interlocking confessions may be 
admitted without violating the clause. Four Justices held that admission 
of such confessions is proper, even though neither defendant testifies, 
if the judge gives the jury a limiting instruction. Four Justices held 
that a harmless error analysis should be applied, although they then 
divided over its meaning in this case. The former approach was rejected 
in favor of the latter in Cruz v. New York, 481 U.S. 186 (1987). The 
appropriate focus is on reliability, the Court indicated, and ``the 
defendant's confession may be considered at trial in assessing whether 
his codefendant's statements are supported by sufficient `indicia of 
reliability' to be directly admissible against him (assuming the 
`unavailability of the codefendant' despite the lack of opportunity for 
cross-examination.'' 481 U.S. at 193-94.
        \160\Lee v. Illinois, 476 U.S. 530, 541 (1986).

[[Page 1424]]

        More recently, however, the Court has moved away from these 
cases. ``While . . . hearsay rules and the Confrontation Clause are 
generally designed to protect similar values it is quite a different 
thing to suggest that the overlap is complete and that the Confrontation 
Clause is nothing more or less than a codification of the rules of 
hearsay and their exceptions as they existed historically at common law. 
Our decisions have never established such a congruence; indeed, we have 
more than once found a violation of confrontation values even though the 
statements in issue were admitted under an arguably recognized hearsay 
exception . . . . The converse is equally true: merely because evidence 
is admitted in violation of a long-established hearsay rule does not 
lead to the automatic conclusion that confrontation rights have been 

        \161\California v. Green, 399 U.S. 149, 155-56 (1970); Dutton v. 
Evans, 400 U.S. 74, 80-86 (1970). Compare id. at 93, 94, 95 (Justice 
Harlan concurring), with id. at 100, 105 n.7 (Justice Marshall 
dissenting). See also United States v. Inadi, 475 U.S. 387 (1986).

        Further, the Court in California v. Green\162\ upheld the use at 
trial as substantive evidence of two prior statements made by a witness 
who at the trial claimed that he had been under the influence of LSD at 
the time of the occurrence of the events in question and that he could 
therefore neither deny nor affirm the truth of his prior statements. One 
of the earlier statements was sworn testimony given at a preliminary 
hearing at which the defendant was represented by counsel with the 
opportunity to cross-examine the witness; that statement was admissible 
because it had been subjected to cross-examination earlier, the Court 
held, and that was all that was required. The other statement had been 
made to policemen during custodial interrogation, had not been under 
oath, and, of course, had not been subject to cross-examination, but the 
Court deemed it admissible because the witness had been present at the 
trial and could have been cross-examined then. ``[T]he Confrontation 
Clause does not require excluding from evidence the prior statements of 
a witness who concedes making the statements, and who may be asked to 
defend or otherwise explain the inconsistency between his prior and his 
present version of the events in question, thus opening himself to full 
cross-examination at trial as to both

[[Page 1425]]
stories.''\163\ But in Dutton v. Evans,\164\ the Court upheld the use as 
substantive evidence at trial of a statement made by a witness whom the 
prosecution could have produced but did not. Presentation of a statement 
by a witness who is under oath, in the presence of the jury, and subject 
to cross-examination by the defendant is only one way of complying with 
the Confrontation Clause, four Justices concluded. Thus, at least in the 
absence of prosecutorial misconduct or negligence and where the evidence 
is not ``crucial'' or ``devastating,'' the Confrontation Clause is 
satisfied if the circumstances of presentation of out-of-court 
statements are such that ``the trier of fact [has] a satisfactory basis 
for evaluating the truth of the [hearsay] statement,'' and this is to be 
ascertained in each case by focusing on the reliability of the proffered 
hearsay statement, that is, by an inquiry into the likelihood that 
cross-examination of the declarant at trial could successfully call into 
question the declaration's apparent meaning or the declarant's 
sincerity, perception, or memory.\165\

        \162\399 U.S. 149 (1970).
        \163\Id. at 164. Justice Brennan dissented. Id. at 189. See also 
Nelson v. O'Neil, 402 U.S. 622 (1971). ``The Confrontation Clause 
includes no guarantee that every witness called by the prosecution will 
refrain from giving testimony that is marred by forgetfulness, 
confusion, or evasion. To the contrary, the Confrontation Clause is 
generally satisfied when the defense is given a full and fair 
opportunity to probe and expose these infirmities through cross-
examination.'' Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per 
curiam) (expert witness testified as to conclusion, but could not 
remember basis for conclusion). See also United States v. Owens, 484 
U.S. 554 (1988) (testimony as to previous, out-of-court identification 
statement is not barred by witness' inability, due to memory loss, to 
explain the basis for his identification).
        \164\400 U.S. 74 (1970). The statement was made by an alleged 
co-conspirator of the defendant on trial and was admissible under the 
co-conspirator exception to the hearsay rule permitting the use of a 
declaration by one conspirator against all his fellow conspirators. The 
state rule permitted the use of a statement made during the concealment 
stage of the conspiracy while the federal rule permitted use of a 
statement made only in the course of and in furtherance of the 
conspiracy. Id. at 78, 81-82.
        \165\Id. at 86-89. The quoted phrase is at 89, (quoting 
California v. Green, 399 U.S. 149, 161 (1970)). Justice Harlan concurred 
to carry the case, on the view that (1) the Confrontation Clause 
requires only that any testimony actually given at trial must be subject 
to cross-examination, but (2) in the absence of countervailing 
circumstances introduction of prior recorded testimony--``trial by 
affidavit''--would violate the clause. Id. at 93, 95, 97. Justices 
Marshall, Black, Douglas, and Brennan dissented, id. at 100, arguing for 
adoption of a rule that: ``The incriminatory extrajudicial statement of 
an alleged accomplice is so inherently prejudicial that it cannot be 
introduced unless there is an opportunity to cross-examine the 
declarant, whether or not his statement falls within a genuine exception 
to the hearsay rule.'' Id. at 110-11. The Clause protects defendants 
against use of substantive evidence against them, but does not bar 
rebuttal of the defendant's own testimony. Tennessee v. Street, 471 U.S. 
409 (1985) (use of accomplice's confession not to establish facts as to 
defendant's participation in the crime, but instead to support officer's 
rebuttal of defendant's testimony as to circumstances of defendant's 
confession; presence of officer assured right of cross-examination).


[[Page 1426]]

        In Ohio v. Roberts,\166\ the Court explained that it had 
construed the clause ``in two separate ways to restrict the range of 
admissible hearsay.'' First, there is a rule of ``necessity,'' under 
which in the usual case ``the prosecution must either produce, or 
demonstrate the unavailability of, the declarant whose statement it 
wishes to use against the defendant.'' Second, ``once a witness is shown 
to be unavailable . . . , the Clause countenances only hearsay marked 
with such trustworthiness that `there is no material departure from the 
reason of the general rule.'''\167\ That is, if the hearsay declarant is 
not present for cross-examination at trial, the ``statement is 
admissible only if it bears adequate `indicia of reliability.' 
Reliability can be inferred without more in a case where the evidence 
falls within a firmly rooted hearsay exception. In other cases, the 
evidence must be excluded, at least absent a showing of particularized 
guarantees of trustworthiness.''\168\

        \166\448 U.S. 56 (1980). The witness was absent from home and 
her parents testified they did not know where she was or how to get in 
touch with her. The State's sole effort to locate her was to deliver a 
series of subpoenas to her parents' home. Over the objection of three 
dissenters, the Court held this to be an adequate basis to demonstrate 
her unavailability. Id. at 74-77.
        \167\Id. at 65 (quoting Snyder v. Massachusetts, 291 U.S. 97, 
107 (1934)).
        \168\Id. at 66. Applying Roberts, the Court held that the fact 
that defendant's and codefendant's confessions ``interlocked'' on a 
number of points was not a sufficient indicium of reliability, since the 
confessions diverged on the critical issues of the respective roles of 
the two defendants. Lee v. Illinois, 476 U.S. 530 (1986).

        Roberts was narrowed in United States v. Inadi,\169\ holding 
that the rule of ``necessity'' is confined to use of testimony from a 
prior judicial proceeding, and is inapplicable to co-conspirators' out-
of-court statements. The latter--at least those ``made while the 
conspiracy is in progress''--have ``independent evidentiary significance 
of [their] own''; hence in-court testimony is not a necessary or valid 
substitute.\170\ Similarly, evidence embraced within such firmly rooted 
exceptions to the hearsay rule as those for spontaneous declarations and 
statements made for medical treatment'' is not barred from trial by the 
Confrontation Clause.\171\ Particularized guarantees of trustworthiness 
inherent in the circumstances under which a statement is made must be 
shown for admission of other hearsay evidence not covered by a ``firmly 
rooted exception;'' evidence tending to corroborate the truthfulness of 
a statement may not be relied upon as a bootstrap.\172\

        \169\475 U.S. 387 (1986).
        \170\Id. at 394-95.
        \171\White v. Illinois, 112 S. Ct. 736, 743 (1992).
        \172\Idaho v. Wright, 497 U.S. 805, 822-23 (1990) (insufficient 
evidence of trustworthiness of statements made by child sex crime victim 
to her pediatrician; statements were admitted under a ``residual'' 
hearsay exception rather than under a firmly rooted exception).


[[Page 1427]]

        Contrasting approaches to the Confrontation Clause were taken by 
the Court in two cases involving state efforts to protect child sex 
crime victims from trauma while testifying. In Coy v. Iowa,\173\ the 
Court held that the right of confrontation is violated by a procedure, 
authorized by statute, placing a one-way screen between complaining 
child witnesses and the defendant, thereby sparing the witnesses from 
viewing the defendant. This conclusion was reached even though the 
witnesses could be viewed by the defendant's counsel and by the judge 
and jury, even though the right of cross-examination was in no way 
limited, and even though the state asserted a strong interest in 
protecting child sex-abuse victims from further trauma.\174\ The Court's 
opinion by Justice Scalia declared that a defendant's right during his 
trial to face-to-face confrontation with his accusers derives from ``the 
irreducible literal meaning of the clause,'' and traces ``to the 
beginnings of Western legal culture.''\175\ Squarely rejecting the 
Wigmore view ``that the only essential interest preserved by the right 
was cross-examination,\176\ the Court emphasized the importance of face-
to-face confrontation in eliciting truthful testimony.

        \173\487 U.S. 1012 (1988).
        \174\On this latter point, the Court indicated that only 
``individualized findings,'' rather than statutory presumption, could 
suffice to create an exception to the rule. 487 U.S. at 1021.
        \175\Id. at 1015, 1021 (1988).
        \176\Id. at 1018 n.2.

        Coy's interpretation of the Clause, though not its result, was 
rejected in Maryland v. Craig.\177\ In Craig the Court upheld Maryland's 
use of one-way, closed circuit television to protect a child witness in 
a sex crime from viewing the defendant. As in Coy, procedural 
protections other than confrontation were afforded: the child witness 
must testify under oath, is subject to cross examination, and is viewed 
by the judge, jury, and defendant. The critical factual difference 
between the two cases was that Maryland required a case-specific finding 
that the child witness would be traumatized by presence of the 
defendant, while the Iowa procedures struck down in Coy rested on a 
statutory presumption of trauma. But the difference in approach is 
explained by the fact that Justice O'Connor's views, expressed in a 
concurring opinion in Coy, became the opinion of the Court in 
Craig.\178\ Beginning with the propo

[[Page 1428]]
sition that the Confrontation Clause does not, as evidenced by hearsay 
exceptions, grant an absolute right to face-to-face confrontation, the 
Court in Craig described the Clause as ``reflect[ing] a preference for 
face-to-face confrontation.''\179\ This preference can be overcome 
``only where denial of such confrontation is necessary to further an 
important public policy and only where the reliability of the testimony 
is otherwise assured.''\180\ Relying on the traditional and 
``transcendent'' state interest in protecting the welfare of children, 
on the significant number of state laws designed to protect child 
witnesses, and on ``the growing body of academic literature documenting 
the psychological trauma suffered by child abuse victims,''\181\ the 
Court found a state interest sufficiently important to outweigh a 
defendant's right to face-to-face confrontation. Reliability of the 
testimony was assured by the ``rigorous adversarial testing [that] 
preserves the essence of effective confrontation.''\182\ All of this, of 
course, would have led to a different result in Coy as well, but Coy was 
distinguished with the caveat that ``[t]he requisite finding of 
necessity must of course be a case-specific one;'' Maryland's required 
finding that a child witness would suffer ``serious emotional distress'' 
if not protected was clearly adequate for this purpose.\183\

        \177\497 U.S. 836 (1990).
        \178\Coy was decided by a 6-2 vote. Justice Scalia's opinion of 
the Court was joined by Justices Brennan, White, Marshall, Stevens, and 
O'Connor; Justice O'Connor's separate concurring opinion was joined by 
Justice White; Justice Blackmun's dissenting opinion was joined by Chief 
Justice Rehnquist; and Justice Kennedy did not participate. In Craig, a 
5-4 decision, Justice O'Connor's opinion of the Court was joined by the 
two Coy dissenters and by Justices White and Kennedy. Justice Scalia's 
dissent was joined by Justices Brennan, Marshall, and Stevens.
        \179\497 U.S. at 849 (emphasis original).
        \180\Id. at 850. Dissenting Justice Scalia objected that face-
to-face confrontation ``is not a preference `reflected' by the 
Confrontation Clause [but rather] a constitutional right unqualifiedly 
guaranteed,'' and that the Court ``has applied `interest-balancing' 
analysis where the text of the Constitution simply does not permit it.'' 
Id. at 863, 870.
        \181\Id. at 855.
        \182\Id. at 857.
        \183\Id. at 855.

        In another case involving child sex crime victims, the Court 
held that there is no right of face-to-face confrontation at an in-
chambers hearing to determine the competency of a child victim to 
testify, since the defendant's attorney participated in the hearing, and 
since the procedures allowed ``full and effective'' opportunity to 
cross-examine the witness at trial and request reconsideration of the 
competency ruling.\184\ And there is no absolute right to confront 
witnesses with relevant evidence impeaching those witnesses; failure to 
comply with a rape shield law's notice requirement can validly preclude 
introduction of evidence relating to a witness's prior sexual 

        \184\Kentucky v. Stincer, 482 U.S. 730, 744 (1987).
        \185\Michigan v. Lucas, 500 U.S. 145 (1991).

[[Page 1429]]

                             SIXTH AMENDMENT


                           COMPULSORY PROCESS

        The provision requires, of course, that the defendant be 
afforded legal process to compel witnesses to appear,\186\ but another 
apparent purpose of the provision was to make inapplicable in federal 
trials the common-law rule that in cases of treason or felony the 
accused was not allowed to introduce witnesses in his defense.\187\ 
``The right to offer the testimony of witnesses, and to compel their 
attendance, if necessary, is in plain terms the right to present a 
defense, the right to present the defendant's version of the facts as 
well as the prosecution's to the jury so it may decide where the truth 
lies. Just as an accused has the right to confront the prosecution's 
witnesses for the purpose of challenging their testimony, he has the 
right to present his own witnesses to establish a defense. This right is 
a fundamental element of due process of law,'' applicable to states by 
way of the Fourteenth Amendment, and the right is violated by a state 
law providing that coparticipants in the same crime could not testify 
for one another.\188\

        \186\United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 
1800) (Justice Chase on circuit).
        \187\3 J. Story, Commentaries on the Constitution of the United 
States 1786 (1833). See Rosen v. United States, 245 U.S. 467 (1918).
        \188\Washington v. Texas, 388 U.S. 14, 19-23 (1967). Texas did 
permit coparticipants to testify for the prosecution.

        The right to present witnesses is not absolute, however; a court 
may refuse to allow a defense witness to testify when the court finds 
that defendant's counsel willfully failed to identify the witness in a 
pretrial discovery request and thereby attempted to gain a tactical 

        \189\Taylor v. Illinois, 484 U.S. 400 (1988).

        In Pennsylvania v. Ritchie, the Court indicated that requests to 
compel the government to reveal the identity of witnesses or produce 
exculpatory evidence should be evaluated under due process rather than 
compulsory process analysis, adding that ``compulsory process provides 
no greater protections in this area than due process.''\190\

        \190\480 U.S. 39, 56 (1987) (ordering trial court review of 
files of child services agency to determine whether they contain 
evidence material to defense in child abuse prosecution).

                             SIXTH AMENDMENT


                          ASSISTANCE OF COUNSEL

      Development of an Absolute Right to Counsel at Trial

        Neither in the Congress which proposed what became the Sixth 
Amendment guarantee that the accused is to have the assistance of 
counsel nor in the state ratifying conventions is there any

[[Page 1430]]
indication of the understanding associated with the language employed. 
The development of the common-law principle in England had denied to 
anyone charged with a felony the right to retain counsel, while the 
right was afforded in misdemeanor cases, a rule ameliorated in practice, 
however, by the judicial practice of allowing counsel to argue points of 
law and then generously interpreting the limits of ``legal questions.'' 
The colonial and early state practice in this country was varied, 
ranging from the existent English practice to appointment of counsel in 
a few States where needed counsel could not be retained.\191\ 
Contemporaneously with the proposal and ratification of the Sixth 
Amendment, Congress enacted two statutory provisions which seemed to 
indicate an understanding that the guarantee was limited to assuring 
that a person wishing and able to afford counsel would not be denied 
that right.\192\ It was not until the 1930's that the Supreme Court 
began expanding the clause to its present scope.

        \191\W. Beaney, The Right to Counsel in American Courts 8-26 
        \192\Section 35 of the Judiciary Act of 1789, ch.20, 1 Stat. 73, 
provided that in federal courts parties could manage and plead their own 
causes personally or by the assistance of counsel as provided by the 
rules of court. The Act of April 30, 1790, ch.9, 1 Stat. 118, provided: 
Every person who is indicted of treason or other capital crime, ``shall 
be allowed to make his full defense by counsel learned in the law; and 
the court before which he is tried, or some judge thereof, shall 
immediately, upon his request, assign to him such counsel not exceeding 
two, as he may desire, and they shall have free access to him at all 
reasonable hours.'' It was apparently the practice almost invariably to 
appoint counsel for indigent defendants charged with noncapital crimes, 
although it may be assumed that the practice fell short often of what is 
now constitutionally required. W. Beaney, The Right to Counsel in 
American Courts 29-30 (1955).

        Powell v. Alabama.--The expansion began in Powell v. 
Alabama,\193\ in which the Court set aside the convictions of eight 
black youths sentenced to death in a hastily carried-out trial without 
benefit of counsel. Due process, Justice Sutherland said for the Court, 
always requires the observance of certain fundamental personal rights 
associated with a hearing, and ``the right to the aid of counsel is of 
this fundamental character.'' This observation was about the right to 
retain counsel of one's choice and at one's expense, and included an 
eloquent statement of the necessity of counsel. ``The right to be heard 
would be, in many cases, of little avail if it did not comprehend the 
right to be heard by counsel. Even the intelligent and educated layman 
has small and sometimes no skill in the science of law. If charged with 
crimes, he is incapable, generally, of determining for himself whether 
the indictment is good or bad. He is unfamiliar with the rules of 
evidence. Left without the aid of counsel he may be put on trial without 
a proper charge, and convicted upon incompetent evidence, or evidence 
irrelevant to

[[Page 1431]]
the issue or otherwise inadmissible. He lacks both the skill and 
knowledge adequately to prepare his defense, even though he have a 
perfect one. He requires the guiding hand of counsel at every step in 
the proceedings against him. Without it, though he be not guilty, he 
faces the danger of conviction because he does not know how to establish 
his innocence.''\194\

        \193\287 U.S. 45 (1932).
        \194\Id. at 68-69.

        The failure to afford the defendants an opportunity to retain 
counsel violated due process, but the Court acknowledged that as 
indigents the youths could not have retained counsel. Therefore, the 
Court concluded, under the circumstances--``the ignorance and illiteracy 
of the defendants, their youth, the circumstances of public hostility, 
the imprisonment and the close surveillance of the defendants by the 
military forces, the fact that their friends and families were all in 
other states and communication with them necessarily difficult, and 
above all that they stood in deadly peril of their lives''--``the 
necessity of counsel was so vital and imperative that the failure of the 
trial court to make an effective appointment of counsel was likewise a 
denial of due process within the meaning of the Fourteenth Amendment.'' 
The holding was narrow. ``[I]n a capital case, where the defendant is 
unable to employ counsel, and is incapable adequately of making his own 
defense because of ignorance, feeble mindedness, illiteracy, or the 
like, it is the duty of the court, whether requested or not, to assign 
counsel for him as a necessary requisite of due process of law . 
. . .''\195\

        \195\Id. at 71.

        Johnson v. Zerbst.--Next step in the expansion came in Johnson 
v. Zerbst,\196\ in which the Court announced an absolute rule requiring 
appointment of counsel for federal criminal defendants who could not 
afford to retain a lawyer. The right to assistance of counsel, Justice 
Black wrote for the Court, ``is necessary to insure fundamental human 
rights of life and liberty.'' Without stopping to distinguish between 
the right to retain counsel and the right to have counsel provided if 
the defendant cannot afford to hire one, the Justice quoted Justice 
Sutherland's invocation of the necessity of legal counsel for even the 
intelligent and educated layman and said: ``The Sixth Amendment 
withholds from federal courts, in all criminal proceedings, the power 
and authority to deprive an accused of his life or liberty unless he has 
or waives the assistance of counsel.''\197\ Any waiver, the Court ruled, 
must be by the intelligent choice of the defendant, will not be presumed 

[[Page 1432]]
a silent record, and must be determined by the trial court before 
proceeding in the absence of counsel.\198\

        \196\304 U.S. 458 (1938).
        \197\Id. at 462, 463.
        \198\Id. at 464-465. The standards for a valid waiver were 
tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a 
guilty plea made without assistance of counsel, by a ruling requiring 
that a defendant appearing in court be advised of his right to counsel 
and asked whether or not he wished to waive the right. See also Von 
Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506 

        Betts v. Brady and Progeny.--An effort to obtain the same rule 
in the state courts in all criminal proceedings was rebuffed in Betts v. 
Brady.\199\ Justice Roberts for the Court observed that the Sixth 
Amendment would compel the result only in federal courts but that in 
state courts the Due Process Clause of the Fourteenth Amendment 
``formulates a concept less rigid and more fluid'' than those guarantees 
embodied in the Bill of Rights, although a state denial of a right 
protected in one of the first eight Amendments might ``in certain 
circumstances'' be a violation of due process. The question was rather 
``whether the constraint laid by the Amendment upon the national courts 
expresses a rule so fundamental and essential to a fair trial, and so, 
to due process of law, that it is made obligatory upon the States by the 
Fourteenth Amendment.''\200\ Examining the common-law rules, the English 
practice, and the state constitutions, laws and practices, the Court 
concluded that it was the ``considered judgment of the people, their 
representatives and their courts that appointment of counsel is not a 
fundamental right essential to a fair trial.'' Want of counsel in a 
particular case might result in a conviction lacking in fundamental 
fairness and so necessitate the interposition of constitutional 
restriction upon state practice, but this was not the general rule.\201\ 
Justice Black in dissent argued that the Fourteenth Amendment made the 
Sixth applicable to the States and required the appointment of counsel, 
but that even on the Court's terms counsel was a fundamental right and 
appointment was required by due process.\202\

        \199\316 U.S. 455 (1942).
        \200\Id. at 461-62, 465.
        \201\Id. at 471, 473.
        \202\Id. at 474 (joined by Justices Douglas and Murphy).

        Over time the Court abandoned the ``special circumstances'' 
language of Powell v. Alabama\203\ when capital cases were involved and 
finally in Hamilton v. Alabama,\204\ held that in a capital case

[[Page 1433]]
a defendant need make no showing of particularized need or of prejudice 
resulting from absence of counsel; henceforth, assistance of counsel was 
a constitutional requisite in capital cases. In non-capital cases, 
developments were such that Justice Harlan could assert that ``the 
`special circumstances' rule has continued to exist in form while its 
substance has been substantially and steadily eroded.''\205\ The rule 
was designed to afford some certainty in the determination of when 
failure to appoint counsel would result in a trial lacking in 
``fundamental fairness.'' Generally, the Court developed three 
categories of prejudicial factors, often overlapping in individual 
cases, which required the furnishing of assistance of counsel. There 
were (1) the personal characteristics of the defendant which made it 
unlikely he could obtain an adequate defense of his own,\206\ (2) the 
technical complexity of the charges or of possible defenses to the 
charges,\207\ and (3) events occurring at trial that raised problems of 
prejudice.\208\ The last characteristic especially had been utilized by 
the Court to set aside convictions occurring in

[[Page 1434]]
the absence of counsel,\209\ and the last case rejecting a claim of 
denial of assistance of counsel had been decided in 1950.\210\

        \203\287 U.S. 45, 71 (1932).
        \204\368 U.S. 52 (1961). Earlier cases employing the ``special 
circumstances'' language were Williams v. Kaiser, 323 U.S. 471 (1945); 
Tompkins v. Missouri, 323 U.S. 485 (1945); Hawk v. Olson, 326 U.S. 271 
(1945); De Meerleer v. Michigan, 329 U.S. 663 (1947); Marino v. Ragen, 
332 U.S. 561 (1947); Haley v. Ohio, 332 U.S. 596 (1948). Dicta appeared 
in several cases thereafter suggesting an absolute right to counsel in 
capital cases. Bute v. Illinois, 333 U.S. 640, 674 (1948); Uveges v. 
Pennsylvania, 335 U.S. 437, 441 (1948). A state court decision finding a 
waiver of the right in a capital case was upheld in Carter v. Illinois, 
329 U.S. 173 (1946).
        \205\Gideon v. Wainwright, 372 U.S. 335, 350 (1963).
        \206\Youth and immaturity (Moore v. Michigan, 355 U.S. 155 
(1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 (1956); 
Uveges v. Pennsylvania, 335 U.S. 437 (1948); Wade v. Mayo, 334 U.S. 672 
(1948); Marino v. Ragen, 332 U.S. 561 (1947); De Meerleer v. Michigan, 
329 U.S. 663 (1947)), inexperience (Moore v. Michigan, supra (limited 
education), Uveges v. Pennsylvania, supra), and insanity or mental 
abnormality (Massey v. Moore, 348 U.S. 105 (1954); Palmer v. Ashe, 342 
U.S. 134 (1951)), were commonly-cited characteristics of the defendant 
demonstrating the necessity for assistance of counsel.
        \207\Technicality of the crime charged (Moore v. Michigan, 355 
U.S. 155 (1957); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116 
(1956); Williams v. Kaiser, 323 U.S. 471 (1945)), or the technicality of 
a possible defense (Rice v. Olson, 324 U.S. 786 (1945); McNeal v. 
Culver, 365 U.S. 109 (1961)), were commonly cited.
        \208\The deliberate or careless overreaching by the court or the 
prosecutor (Gibbs v. Burke, 337 U.S. 772 (1949); Townsend v. Burke, 334 
U.S. 736 (1948); Palmer v. Ashe, 342 U.S. 134 (1951); White v. Ragen, 
324 U.S. 760 (1945)), prejudicial developments during the trial (Cash v. 
Culver, 358 U.S. 633 (1959); Gibbs v. Burke, supra), and questionable 
proceedings at sentencing (Townsend v. Burke, supra), were commonly 
        \209\Hudson v. North Carolina, 363 U.S. 697 (1960), held that an 
unrepresented defendant had been prejudiced when his co-defendant's 
counsel plead his client guilty in the presence of the jury, the 
applicable state rules to avoid prejudice in such situation were 
unclear, and the defendant in any event had taken no steps to protect 
himself. The case seemed to require reversal of any conviction when the 
record contained a prejudicial occurrence that under state law might 
have been prevented or ameliorated. Carnley v. Cochran, 369 U.S. 506 
(1962), reversed a conviction because the unrepresented defendant failed 
to follow some advantageous procedure that a lawyer might have utilized. 
Chewning v. Cunningham, 368 U.S. 443 (1962), found that a lawyer might 
have developed several defenses and adopted several tactics to defeat a 
charge under a state recidivist statute, and that therefore the 
unrepresented defendant had been prejudiced.
        \210\Quicksal v. Michigan, 339 U.S. 660 (1950). See also Canizio 
v. New York, 327 U.S. 82 (1946); Foster v. Illinois, 332 U.S. 134 
(1947); Gayes v. New York, 332 U.S. 145 (1947); Bute v. Illinois, 333 
U.S. 640 (1948); Gryger v. Burke, 334 U.S. 728 (1948). Cf. White v. 
Ragen, 324 U.S. 760 (1945).

        Gideon v. Wainwright.--Against this background, a unanimous 
Court in Gideon v. Wainwright\211\ overruled Betts v. Brady and held 
``that in our adversary system of criminal justice, any person haled 
into court, who is too poor to hire a lawyer, cannot be assured a fair 
trial unless counsel is provided for him.''\212\ Justice Black, a 
dissenter in the 1942 decision, asserted for the Court that Betts was an 
``abrupt break'' with earlier precedents, citing Powell and Johnson v. 
Zerbst. Rejecting the Betts reasoning, the Court decided that the right 
to assistance of counsel is ``fundamental'' and the Fourteenth Amendment 
does make the right constitutionally required in state courts.\213\ The 
Court's opinion in Gideon left unanswered the question whether the right 
to assistance of counsel was claimable by defendants charged with 
misdemeanors or serious misdemeanors as well as with felonies, and it 
was not until recently that the Court held that the right applies to any 
misdemeanor case in which imprisonment is imposed--that no person may be 
sentenced to jail who was convicted in the absence of counsel, unless he 
validly waived his right.\214\ The right to the assistance of counsel 
exists in juvenile proceedings also.\215\

        \211\372 U.S. 335 (1963).
        \212\Id. at 344.
        \213\Id. at 342-43, 344. Justice Black, of course, believed the 
Fourteenth Amendment made applicable to the States all the provisions of 
the Bill of Rights, Adamson v. California, 332 U.S. 46, 71 (1947), but 
for purposes of delivering the opinion of the Court followed the due 
process absorption doctrine. Justice Douglas, concurring, maintained the 
incorporation position. Gideon, supra, at 345. Justice Harlan concurred, 
objecting both to the Court's manner of overruling Betts v. Brady and to 
the incorporation implications of the opinion. Id. at 349.
        \214\Scott v. Illinois, 440 U.S. 367 (1979), adopted a rule of 
actual punishment and thus modified Argersinger v. Hamlin, 407 U.S. 25 
(1972), which had held counsel required if imprisonment were possible.
        \215\In re Gault, 387 U.S. 1 (1967). See also Specht v. 
Patterson, 386 U.S. 605 (1967).


[[Page 1435]]

        Because the absence of counsel when a defendant is convicted or 
pleads guilty goes to the fairness of the proceedings and undermines the 
presumption of reliability that attaches to a judgment of a court, 
Gideon has been held fully retroactive, so that convictions obtained in 
the absence of counsel without a valid waiver are not only 
voidable,\216\ but also may not be subsequently used either to support 
guilt in a new trial or to enhance punishment upon a valid 

        \216\Pickelsimer v. Wainwright, 375 U.S. 2 (1963); Doughty v. 
Maxwell, 376 U.S. 202 (1964); Kitchens v. Smith, 401 U.S. 847 (1971). 
See Linkletter v. Walker, 381 U.S. 618, 639 (1965).
        \217\Burgett v. Texas, 389 U.S. 109 (1967) (admission of record 
of prior counselless conviction at trial with instruction to jury to 
regard it only for purposes of determining sentence if it found 
defendant guilty but not to use it in considering guilt inherently 
prejudicial); United States v. Tucker, 404 U.S. 443 (1972) (error for 
sentencing judge in 1953 to have relied on two previous convictions at 
which defendant was without counsel); Loper v. Beto, 405 U.S. 473 (1972) 
(error to have permitted counseled defendant in 1947 trial to have his 
credibility impeached by introduction of prior uncounseled convictions 
in the 1930's; Chief Justice Burger and Justices Blackmun, Powell, and 
Rehnquist dissented); Baldasar v. Illinois, 446 U.S. 222 (1980) 
(although under Scott v. Illinois, 440 U.S. 367 (1979), an uncounseled 
misdemeanor conviction is valid if defendant is not incarcerated, such a 
conviction nonetheless may not be used under an enhanced penalty statute 
to convert a subsequent misdemeanor into a felony with a prison term).

        Protection of the Right to Retained Counsel.--The Sixth 
Amendment has also been held to protect absolutely the right of a 
defendant to retain counsel of his choice and to be represented in the 
fullest measure by the person of his choice. Thus, in Chandler v. 
Fretag,\218\ when a defendant appearing to plead guilty on a house-
breaking charge was orally advised for the first time that, because of 
three prior convictions for felonies, he would be tried also as an 
habitual criminal and if convicted would be sentenced to life 
imprisonment, the court's denial of his request for a continuance in 
order to consult an attorney was a violation of his Fourteenth Amendment 
due process rights. ``Regardless of whether petitioner would have been 
entitled to the appointment of counsel, his right to be heard through 
his own counsel was unqualified. . . . A necessary corollary is that a 
defendant must be given a reasonable opportunity to employ and consult 
with counsel; otherwise, the right to be heard by counsel would be of 
little worth.''\219\ But the right to retain counsel of choice does not 
bar operation of forfeiture provisions, even if the result is to deny to 
a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. 
United States,\220\ the Court upheld a federal statute requiring 
forfeiture to

[[Page 1436]]
the government of property and proceeds derived from drug-related crimes 
constituting a ``continuing criminal enterprise,''\221\ even though a 
portion of the forfeited assets had been used to retain defense counsel. 
While a defendant may spend his own money to employ counsel, the Court 
declared, ``[a] defendant has no Sixth Amendment right to spend another 
person's money for services rendered by an attorney, even if those funds 
are the only way that defendant will be able to retain the attorney of 
his choice.''\222\ Because the statute vests title to the forfeitable 
assets in the United States at the time of the criminal act,\223\ the 
defendant has no right to give them to a ``third party'' even if the 
purpose is to exercise a constitutionally protected right.\224\

        \218\348 U.S. 3 (1954).
        \219\Id. at 9, 10. See also House v. Mayo, 324 U.S. 42 (1945); 
Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 
        \220\491 U.S. 617 (1989).
        \221\21 U.S.C. Sec. 853.
        \222\491 U.S. at 626.
        \223\The statute was interpreted in United States v. Monsanto, 
491 U.S. 600 (1989), as requiring forfeiture of all assets derived from 
the covered offenses, and as making no exception for assets the 
defendant intends to use for his defense.
        \224\Dissenting Justice Blackmun, joined by Justices Brennan, 
Marshall, and Stevens, described the Court's ruling as allowing the 
Sixth Amendment right to counsel of choice to be ``outweighed by a legal 
fiction.'' 491 U.S. at 644 (dissenting from both Caplin & Drysdale and 

        Whenever defense counsel is representing two or more defendants 
and asserts in timely fashion to the trial judge that because of 
possible conflicts of interest between or among his clients he is unable 
to render effective assistance, the judge must examine the claim 
carefully, and unless he finds the risk too remote he must permit or 
appoint separate counsel.\225\ Subsequently, the Court elaborated upon 
this principle and extended it.\226\ First, the Sixth Amendment right to 
counsel applies to defendants who retain private counsel as well as to 
defendants served by appointed counsel. Second, judges are not 
automatically required to initiate an inquiry into the propriety of 
multiple representation, being able to assume in the absence of 
undefined ``special circumstances'' that no conflict exists. Third, to 
establish a violation, a defendant must show an ``actual conflict of 
interest which adversely affected his lawyer's performance.'' Once it is 
established that a conflict affected the lawyer's action, however, 
prejudice need not be proved.\227\

        \225\Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been 
appointed by the court.
        \226\Cuyler v. Sullivan, 446 U.S. 335 (1980).
        \227\Id. at 348-50. For earlier cases presenting more direct 
violations of defendant's rights, see Glasser v. United States, 315 U.S. 
60 (1942); United States v. Hayman, 342 U.S. 205 (1952); and Ellis v. 
United States, 365 U.S. 674 (1958).

        ``[T]he right to the assistance of counsel has been understood 
to mean that there can be no restrictions upon the function of counsel 
in defending a criminal prosecution in accord with the traditions of the 
adversary factfinding process that has been

[[Page 1437]]
constitutionalized in the Sixth and Fourteenth Amendments.''\228\ So 
saying, the Court invalidated a statute empowering every judge in a 
nonjury criminal trial to deny the parties the right to make a final 
summation before rendition of judgment which had been applied in the 
specific case to prevent defendant's counsel from making a summation. 
The opportunity to participate fully and fairly in the adversary 
factfinding process includes counsel's right to make a closing argument. 
And, in Geders v. United States,\229\ the Court held that a trial 
judge's order preventing defendant from consulting his counsel during a 
17-hour overnight recess between his direct and cross-examination, in 
order to prevent tailoring of testimony or ``coaching,'' deprived 
defendant of his right to assistance of counsel and was invalid.\230\ 
Other direct and indirect restraints upon counsel and his discretion 
have been found to be in violation of the Amendment.\231\ Governmental 
investigative agents may interfere as well with the relationship of 
defense and counsel.\232\

        \228\Herring v. New York, 422 U.S. 853, 857 (1975).
        \229\425 U.S. 80 (1976).
        \230\Geders was distinguished in Perry v. Leeke, 488 U.S. 272 
(1989), in which the Court upheld a trial court's order that the 
defendant and his counsel not consult during a 15-minute recess between 
the defendant's direct testimony and his cross-examination.
        \231\E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where 
defendant was prevented by statute from giving sworn testimony in his 
defense, the refusal of a state court to permit defense counsel to 
question him to elicit his unsworn statement denied due process because 
it denied him assistance of counsel); Brooks v. Tennessee, 406 U.S. 605 
(1972) (alternative holding) (statute requiring defendant to testify 
prior to any other witness for defense or to forfeit the right to 
testify denied him due process by depriving him of decision of counsel 
on questions whether to testify and when).
        \232\United States v. Morrison, 449 U.S. 361 (1981) (Court 
assumed that investigators who met with defendant, on another matter, 
without knowledge or permission of counsel and who disparaged counsel 
and suggested she could do better without him interfered with counsel, 
but held that in absence of showing of adverse consequences to 
representation, dismissal of indictment was inappropriate remedy).

        Effective Assistance of Counsel.--``[T]he right to counsel is 
the right to the effective assistance of counsel.''\233\ From the 
beginning of the cases holding that counsel must be appointed for 
defendants unable to afford to retain a lawyer, the Court has indicated 
that appointment must be made in a manner that affords ``effective aid 
in the preparation and trial of the case.''\234\ Of course, the 
government must not interfere with representation, either through the 
manner of appointment or through the imposition of restrictions upon 
appointed or retained counsel that would impede his ability fairly to 
provide a defense,\235\ but the Sixth Amendment

[[Page 1438]]
goes further than that. ``The right to counsel prevents the States from 
conducting trials at which persons who face incarceration must defend 
themselves without adequate legal assistance.''\236\ That is, a criminal 
trial initiated and conducted by government is state action which may be 
so fundamentally unfair that no conviction obtained thereby may be 
allowed to stand, irrespective of the possible fact that government did 
nothing itself to bring about the unfairness. Thus, ineffective 
assistance provided by retained counsel provides a basis for finding a 
Sixth Amendment denial in a trial.\237\

        \233\McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
        \234\Powell v. Alabama, 287 U.S. 45, 71-72 (1932); Glasser v. 
United States, 315 U.S. 60, 70 (1942).
        \235\E.g., Glasser v. United States, 315 U.S. 60 (1942) (trial 
court required defendant and codefendant to be represented by same 
appointed counsel despite divergent interests); Geders v. United States, 
425 U.S. 80 (1976) (trial judge barred consultation between defendant 
and attorney overnight); Herring v. New York, 422 U.S. 853 (1975) 
(application of statute to bar defense counsel from making final 
        \236\Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
        \237\Id. at 342-45. But see Wainwright v. Torna, 455 U.S. 586 
(1982) (summarily holding that defendant may not raise ineffective 
assistance claim in context of proceeding in which he had no 
constitutional right to counsel).

        The trial judge must not only refrain from creating a situation 
of ineffective assistance, but may well be obligated under certain 
circumstances to inquire whether defendant's counsel, because of a 
possible conflict of interest or otherwise, is rendering or may render 
ineffective assistance.\238\ A much more difficult issue is presented 
when a defendant on appeal or in a collateral proceeding alleges that 
his counsel was incompetent or was not competent enough to provide 
effective assistance. While the Court touched on the question in 
1970,\239\ it was not until 1984, in Strickland v. Washington,\240\ that 
the Court articulated a general test for ineffective assistance of 
counsel in criminal trials and in capital sentencing proceedings.\241\

        \238\Holloway v. Arkansas, 435 U.S. 475 (1978) (public defender 
representing three defendants alerted trial judge to possibility of 
conflicts of interest; judge should have appointed different counsel or 
made inquiry into possibility of conflicts); Cuyler v. Sullivan, 446 
U.S. 335 (1980) (trial judge had no obligation to inquire into adequacy 
of multiple representation, with possible conflict of interest, in 
absence of raising of issue by defendant or counsel); Wood v. Georgia, 
450 U.S. 261 (1981) (where counsel retained by defendants' employer had 
conflict between their interests and employer's, and all the facts were 
known to trial judge, he should have inquired further); Wheat v. United 
States, 486 U.S. 153 (1988) (district court correctly denied defendant's 
waiver of right to conflict-free representation; separate representation 
order is justified by likelihood of attorney's conflict of interest).
        \239\In McMann v. Richardson, 397 U.S. 759, 768-71 (1970), the 
Court observed that whether defense counsel provided adequate 
representation, in advising a guilty plea, depended not on whether a 
court would retrospectively consider his advice right or wrong ``but on 
whether that advice was within the range of competence demanded of 
attorneys in criminal cases.'' See also Tollett v. Henderson, 411 U.S. 
258, 266-69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976).
        \240\466 U.S. 668 (1984).
        \241\Strickland involved capital sentencing, and the Court left 
open the issue of what standards might apply in ordinary sentencing, 
where there is generally far more discretion than in capital sentencing, 
or in the guilt/innocence phase of a capital trial. 466 U.S. at 686.


[[Page 1439]]

        There are two components to the test: deficient attorney 
performance and resulting prejudice to the defense so serious as to 
bring the outcome of the proceeding into question. Although the gauge of 
effective attorney performance is an objective standard of 
reasonableness, the Court concluded that ``[j]udicial scrutiny of 
counsel's performance must be highly deferential.'' Strategic choices 
made after thorough investigation of relevant law and facts are 
``virtually unchallengeable,'' as are ``reasonable'' decisions making 
investigation unnecessary.\242\ In order to establish prejudice 
resulting from attorney error, the defendant ``must show that there is a 
reasonable probability that, but for counsel's unprofessional errors, 
the result of the proceeding would have been different. A reasonable 
probability is a probability sufficient to undermine confidence in the 
outcome.''\243\ In Strickland, neither part of the test was satisfied. 
The attorney's decision to forego character and psychological evidence 
in the capital sentencing proceeding in order to avoid evidence of the 
defendant's criminal history was deemed ``the result of reasonable 
professional judgment,'' and prejudice could not be shown because ``the 
overwhelming aggravating factors'' outweighed whatever evidence of good 
character could have been presented.\244\ In Hill v. Lockhart,\245\ the 
Court applied the Strickland test to attorney decisions in plea 
bargaining, holding that a defendant must show a reasonable probability 
that, but for counsel's errors, he would not have pleaded guilty.

        \242\466 U.S. at 689-91. The obligation is to stay within the 
wide range of legitimate, lawful, professional conduct; there is no 
obligation to assist the defendant in presenting perjured testimony. Nix 
v. Whiteside, 475 U.S. 157 (1986). See also Georgia v. McCollum, 112 S. 
Ct. 2348 (1992) (no right to carry out through counsel the racially 
discriminatory exclusion of jurors during voir dire). Also, 
``effective'' assistance of counsel does not guarantee the accused a 
``meaningful relationship'' of ``rapport'' with his attorney such that 
he is entitled to a continuance in order to change attorneys during a 
trial. Morris v. Slappy, 461 U.S. 1 (1983). See also Jones v. Barnes, 
463 U.S. 745 (1983) (no obligation to present on appeal all nonfrivolous 
issues requested by defendant; appointed counsel may exercise his 
professional judgement in determining which issues are best raised on 
        \243\466 U.S. at 694.
        \244\466 U.S. at 699. Accord, Darden v. Wainwright, 477 U.S. 168 
(1986) (decision not to introduce mitigating evidence).
        \245\474 U.S. 52 (1985).

        There are times when prejudice may be presumed, i.e. there can 
be ``circumstances that are so likely to prejudice the accused that the 
cost of litigating their effect in a particular case is 
unjustified.''\246\ These situations include actual or constructive 
denial of counsel, and denial of such basics as the right to effective 
cross-examination. However, ``[a]part from circumstances of that 

[[Page 1440]]
. . . there is generally no basis for finding a Sixth Amendment 
violation unless the accused can show [prejudice].''\247\

        \246\United States v. Cronic, 466 U.S. 648, 658 (1984).
        \247\466 U.S. at 659 n.26 (finding no inherently prejudicial 
circumstances in appointment of real estate attorney with no criminal 
law experience to defend mail fraud ``check kiting'' charges with 
approximately one month's preparation time). On the other hand, an 
attorney's failure to advise a client of his right to appeal, and of his 
right to an attorney on appeal, amounts to ``a substantial showing'' of 
denial of the right to effective counsel. Lozada v. Deeds, 498 U.S. 430, 
432 (1991) (per curiam).

        Self-Representation.--The Court has held that the Sixth 
Amendment, in addition to guaranteeing the right to retained or 
appointed counsel, also guarantees a defendant the right to represent 
himself.\248\ It is a right the defendant must adopt knowingly and 
intelligently; under some circumstances the trial judge may deny the 
authority to exercise it, as when the defendant simply lacks the 
competence to make a knowing or intelligent waiver of counsel or when 
his self-representation is so disruptive of orderly procedures that the 
judge may curtail it.

        \248\Faretta v. California, 422 U.S. 806 (1975). Even if the 
defendant exercises his right to his detriment, the Constitution 
ordinarily guarantees him the opportunity to do so. A defendant who 
represents himself cannot thereafter complain that the quality of his 
defense denied him effective assistance of counsel. Id. at 834-35 n.46. 
Related to the right of self-representation is the right to testify in 
one's own defense. Rock v. Arkansas, 483 U.S. 44 (1987) (per se rule 
excluding all hypnotically refreshed testimony violates right).

        The essential elements of self-representation were spelled out 
in McKaskle v. Wiggins,\249\ a case involving the self-represented 
defendant's rights vis-a-vis ``standby counsel'' appointed by the trial 
court. The ``core of the Faretta right'' is that the defendant ``is 
entitled to preserve actual control over the case he chooses to present 
to the jury,'' and consequently, standby counsel's participation 
``should not be allowed to destroy the jury's perception that the 
defendant is representing himself.''\250\ But participation of standby 
counsel even in the jury's presence and over the defendant's objection 
does not violate the defendant's Sixth Amendment rights when serving the 
basic purpose of aiding the defendant in complying with routine 
courtroom procedures and protocols and thereby relieving the trial judge 
of these tasks.\251\

        \249\465 U.S. 168 (1984).
        \250\Id. at 178.
        \251\Id. at 184.
      Right to Assistance of Counsel in Nontrial Situations

        Judicial Proceedings Before Trial.--Dicta in Powell v. 
Alabama\252\ indicated that ``during perhaps the most critical period of 
the proceedings . . . that is to say, from the time of their arraignment 
until the beginning of their trial, when consultation, thor

[[Page 1441]]
oughgoing investigation and preparation [are] vitally important, the 
defendants . . . [are] as much entitled to such aid [of counsel] during 
that period as at the trial itself.'' This language has gradually been 
expanded upon and the Court has developed a concept of ``a critical 
stage in a criminal proceeding'' as indicating when the defendant must 
be represented by counsel. Thus, in Hamilton v. Alabama,\253\ the Court 
noted that arraignment under state law was a ``critical stage'' because 
the defense of insanity had to be pleaded then or lost, pleas in 
abatement had to be made then, and motions to quash on the ground of 
racial exclusion of grand jurors or that the grand jury was improperly 
drawn had to be made then. White v. Maryland\254\ set aside a conviction 
obtained at a trial at which defendant's plea of guilty, entered at a 
preliminary hearing where he was without counsel, was introduced as 
evidence against him at trial. Finally in Coleman v. Alabama,\255\ the 
Court denominated a preliminary hearing as a ``critical stage'' 
necessitating counsel even though the only functions of the hearing were 
to determine probable cause to warrant presenting the case to a grand 
jury and to fix bail; no defense was required to be presented at that 
point and nothing occurring at the hearing could be used against the 
defendant at trial. The Court hypothesized that a lawyer might by 
skilled examination and cross-examination expose weaknesses in the 
prosecution's case and thereby save the defendant from being bound over, 
and could in any event preserve for use in cross-examination at trial 
and impeachment purposes testimony he could elicit at the hearing; he 
could discover as much as possible of the prosecution's case against 
defendant for better trial preparation; and he could influence the court 
in such matters as bail and psychiatric examination. The result seems to 
be that reached in pre-Gideon cases in which a defendant was entitled to 
counsel if a lawyer might have made a difference.\256\

        \252\287 U.S. 45, 57 (1932).
        \253\368 U.S. 52 (1961).
        \254\373 U.S. 59 (1963).
        \255\399 U.S. 1 (1970). Justice Harlan concurred solely because 
he thought the precedents compelled him to do so, id. at 19, while Chief 
Justice Burger and Justice Stewart dissented. Id. at 21, 25. Inasmuch as 
the role of counsel at the preliminary hearing stage does not 
necessarily have the same effect upon the integrity of the factfinding 
process as the role of counsel at trial, Coleman was denied retroactive 
effect in Adams v. Illinois, 405 U.S. 278 (1972). Justice Blackmun 
joined Chief Justice Burger in pronouncing Coleman wrongly decided. Id. 
at 285, 286. Hamilton and White, however, were held to be retroactive in 
Arsenault v. Massachusetts, 393 U.S. 5 (1968).
        \256\Compare Hudson v. North Carolina, 363 U.S. 697 (1960), with 
Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 
U.S. 506 (1962).

        Custodial Interrogation.--At first, the Court followed the rule 
of ``fundamental fairness,'' assessing whether under all the 
circumstances a defendant was so prejudiced by the denial of access

[[Page 1442]]
to counsel that his subsequent trial was tainted.\257\ It was held in 
Spano v. New York\258\ that under the totality of circumstances a 
confession obtained in a post-indictment interrogation was involuntary, 
and four Justices wished to place the holding solely on the basis that 
post-indictment interrogation in the absence of defendant's lawyer was a 
denial of his right to assistance of counsel. That holding was made in 
Massiah v. United States,\259\ in which federal officers caused an 
informer to elicit from the already-indicted defendant, who was 
represented by a lawyer, incriminating admissions which were secretly 
overheard over a broadcasting unit. Then, in Escobedo v. Illinois,\260\ 
the Court held that preindictment interrogation was a violation of the 
Sixth Amendment. But Miranda v. Arizona\261\ switched from reliance on 
the Sixth Amendment to the Fifth Amendment's self-incrimination clause, 
although that case still placed great emphasis upon police warnings with 
regard to counsel and foreclosure of interrogation in the absence of 
counsel without a valid waiver by defendant.

        \257\Crooker v. California, 357 U.S. 433 (1958) (five-to-four 
decision); Cicenia v. Lagay, 357 U.S. 504 (1958) (five-to-three).
        \258\360 U.S. 315 (1959).
        \259\377 U.S. 201 (1964). See also McLeod v. Ohio, 381 U.S. 356 
(1965) (applying Massiah to the States, in a case not involving trickery 
but in which defendant was endeavoring to cooperate with the police). 
But see Hoffa v. United States, 385 U.S. 293 (1966). Cf. Milton v. 
Wainwright, 407 U.S. 371 (1972).
        \260\378 U.S. 478 (1964).
        \261\384 U.S. 436 (1966).

        Massiah was reaffirmed and in some respects expanded by the 
Court. Thus, in Brewer v. Williams,\262\ the right to counsel was found 
violated when police elicited from defendant incriminating admissions 
not through formal questioning but rather through a series of 
conversational openings designed to play on the defendant's known 
weakness. The police conduct occurred in the post-arraignment period in 
the absence of defense counsel and despite assurances to the attorney 
that defendant would not be questioned in his absence. United States v. 
Henry\263\ held that government agents violated the Sixth Amendment 
right to counsel when they contacted the cellmate of an indicted 
defendant and promised him payment under a contingent fee arrangement if 
he would ``pay attention'' to incriminating remarks initiated by the 
defendant and others. The Court concluded that even if the government 
agents did not intend the informant to take affirmative steps to elicit 

[[Page 1443]]
nating statements from the defendant in the absence of counsel, the 
agents must have known that result would follow.

        \262\430 U.S. 387 (1977). Chief Justice Burger and Justices 
White, Blackmun, and Rehnquist dissented. Id. at 415, 429, 438. Compare 
Rhode Island v. Innis, 446 U.S. 291 (1980), decided on self-
incrimination grounds under similar facts.
        \263\447 U.S. 264 (1980) Justices Blackmun, White, and Rehnquist 
dissented. Id. at 277, 289. But cf. Weatherford v. Bursey, 429 U.S. 545 

        The Court has extended the Edwards v. Arizona\264\ rule 
protecting in-custody requests for counsel to post-arraignment 
situations where the right derives from the Sixth Amendment rather than 
the Fifth. Thus, the Court held in Michigan v. Jackson, ``if police 
initiate interrogation after a defendant's assertion, at an arraignment 
or similar proceeding, of his right to counsel, any waiver of the 
defendant's right to counsel for that police-initiated interrogation is 
invalid.''\265\ The Court concluded that ``the reasons for prohibiting 
the interrogation of an uncounseled prisoner who has asked for the help 
of a lawyer are even stronger after he has been formally charged with an 
offense than before.''\266\ The protection, however, is not as broad 
under the Sixth Amendment as it is under the Fifth. While Edwards has 
been extended to bar custodial questioning stemming from a separate 
investigation as well as questioning relating to the crime for which the 
suspect was arrested,\267\ this extension does not apply for purposes of 
the Sixth Amendment right to counsel. The Sixth Amendment right is 
``offense-specific,'' and so also is ``its Michigan v. Jackson effect of 
invalidating subsequent waivers in police-initiated interviews.''\268\ 
Therefore, while a defendant who has invoked his Sixth Amendment right 
to counsel with respect to the offense for which he is being prosecuted 
may not waive that right, he may waive his Miranda-based right not to be 
interrogated about unrelated and uncharged offenses.

        \264\451 U.S. 477 (1981).
        \265\475 U.S. 625, 636 (1986).
        \266\475 U.S. at 631. If a prisoner does not ask for the 
assistance of counsel, however, and voluntarily waives his rights 
following a Miranda warning, these reasons disappear. Moreover, although 
the right to counsel is more difficult to waive at trial than before 
trial, ``whatever standards suffice for Miranda's purposes will also be 
sufficient [for waiver of Sixth Amendment rights] in the context of 
postindictment questioning.'' Patterson v. Illinois, 487 U.S. 285, 298 
        \267\Arizona v. Roberson, 486 U.S. 675 (1988).
        \268\McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The reason 
why the right is ``offense-specific'' is that ``it does not attach until 
a prosecution is commenced.'' Id.

        The remedy for violation of the Sixth Amendment rule is 
exclusion from evidence of statements so obtained.\269\ And, while the 
basis for the Sixth Amendment exclusionary rule--to protect the right to 
a fair trial--differs from that of the Fourth Amendment rule--to deter 
illegal police conduct--exceptions to the Fourth Amendment's 
exclusionary rule can apply as well to the Sixth. In Nix v. 
Williams,\270\ the Court held the ``inevitable discovery'' exception 
applicable to defeat exclusion of evidence obtained as a result of an 
interrogation violating the accused's Sixth Amendment rights.

[[Page 1444]]
``Exclusion of physical evidence that would inevitably have been 
discovered adds nothing to either the integrity or fairness of a 
criminal trial.''\271\ Also, an exception to the Sixth Amendment 
exclusionary rule has been recognized for the purpose of impeaching the 
defendant's trial testimony.\272\

        \269\See Michigan v. Jackson, 475 U.S. 625 (1986).
        \270\467 U.S. 431 (1984).
        \271\467 U.S. at 446.
        \272\Michigan v. Harvey, 494 U.S. 344 (1990) (postarraignment 
statement taken in violation of Sixth Amendment is admissible to impeach 
defendant's inconsistent trial testimony).

        Lineups and Other Identification Situations.--The concept of the 
``critical stage'' was again expanded and its rationale formulated in 
United States v. Wade,\273\ which, with Gilbert v. California,\274\ held 
that lineups are a critical stage and that in-court identification of 
defendants based on out-of-court lineups or show-ups without the 
presence of defendant's counsel is inadmissible. The Sixth Amendment 
guarantee, said Justice Brennan, was intended to do away with the 
common-law limitation of assistance of counsel to matters of law, 
excluding matters of fact. The abolition of the fact-law distinction 
took on new importance due to the changes in investigation and 
prosecution since adoption of the Sixth Amendment. ``When the Bill of 
Rights was adopted there were no organized police forces as we know them 
today. The accused confronted the prosecutor and the witnesses against 
him and the evidence was marshalled, largely at the trial itself. In 
contrast, today's law enforcement machinery involves critical 
confrontations of the accused by the prosecution at pretrial proceedings 
where the results might well settle the accused's fate and reduce the 
trial itself to a mere formality. In recognition of these realities of 
modern criminal prosecution, our cases have construed the Sixth 
Amendment guarantee to apply to `critical' stages of the proceedings. 
. . . The plain wording of this guarantee thus encompasses counsel's 
assistance whenever necessary to assure a meaningful `defence.'''\275\

        \273\388 U.S. 218 (1967).
        \274\388 U.S. 263 (1967).
        \275\United States v. Wade, 388 U.S. 218, 224-25 (1967) 
(citations omitted).

        ``It is central to [the principle of Powell v. Alabama] that in 
addition to counsel's presence at trial, the accused is guaranteed that 
he need not stand alone against the State at any stage of the 
prosecution, formal or informal, in court or out, where counsel's 
absence might derogate from the accused's right to a fair trial.''\276\ 
Counsel's presence at a lineup is constitutionally necessary because the 
lineup stage is filled with numerous possibilities for errors, both 
inadvertent and intentional, which cannot adequately be discovered

[[Page 1445]]
and remedied at trial.\277\ However, because there was less certainty 
and frequency of possible injustice at this stage, the Court held that 
the two cases were to be given prospective effect only; more egregious 
instances, where identification had been based upon lineups conducted in 
a manner that was unnecessarily suggestive and conducive to irreparable 
mistaken identification, could be invalidated under the due process 
clause.\278\ The Wade-Gilbert rule is inapplicable to other methods of 
obtaining identification and other evidentiary material relating to the 
defendant, such as blood samples, handwriting exemplars, and the like, 
because there is minimal risk that the absence of counsel might derogate 
from the defendant's right to a fair trial.\279\

        \276\Id. at 226 (citations omitted).
        \277\Id. at 227-39. Previously, the manner of an extra-judicial 
identification affected only the weight, not the admissibility, of 
identification testimony at trial. Justices White, Harlan, and Stewart 
dissented, denying any objective need for the Court's per se rule and 
doubting its efficacy in any event. Id. at 250.
        \278\Stovall v. Denno, 388 U.S. 293 (1967).
        \279\Gilbert v. California, 388 U.S. 263, 265-67 (1967) 
(handwriting exemplars); Schmerber v. California, 384 U.S. 757, 765-66 
(1966) (blood samples).

        In United States v. Ash,\280\ the Court redefined and modified 
its ``critical stage'' analysis. According to the Court, the ``core 
purpose'' of the guarantee of counsel is to assure assistance at trial 
``when the accused was confronted with both the intricacies of the law 
and the advocacy of the public prosecutor.'' But assistance would be 
less than meaningful in the light of developments in criminal 
investigation and procedure if it were limited to the formal trial 
itself; therefore, counsel is compelled at ``pretrial events that might 
appropriately be considered to be parts of the trial itself. At these 
newly emerging and significant events, the accused was confronted, just 
as at trial, by the procedural system, or by his expert adversary, or by 
both.''\281\ Therefore, unless at the pretrial stage there was involved 
the physical presence of the accused at a trial-like confrontation at 
which the accused requires the guiding

[[Page 1446]]
hand of counsel, the Sixth Amendment does not guarantee the assistance 
of counsel.

        \280\413 U.S. 300 (1973). Justices Brennan, Douglas, and 
Marshall dissented. Id. at 326.
        \281\Id. at 309-10, 312-13. Justice Stewart, concurring on other 
grounds, rejected this analysis, id. at 321, as did the three 
dissenters. Id. at 326, 338-344. ``The fundamental premise underlying 
all of this Court's decisions holding the right to counsel applicable at 
``critical' pretrial proceedings, is that a `stage' of the prosecution 
must be deemed `critical' for the purposes of the Sixth Amendment if it 
is one at which the presence of counsel is necessary `to protect the 
fairness of the trial itself.''' Id. at 339 (Justice Brennan 
dissenting). Examination of defendant by court-appointed psychiatrist to 
determine his competency to stand trial, after his indictment, was a 
``critical'' stage, and he was entitled to the assistance of counsel 
before submitting to it. Estelle v. Smith, 451 U.S. 454, 469-71 (1981). 
Constructive notice is insufficient to alert counsel to psychiatric 
examination to assess future dangerousness of an indicted client. 
Satterwhite v. Texas, 486 U.S. 249 (1987) (also subjecting Estelle v. 
Smith violations to harmless error analysis in capital cases).

        Since the defendant was not present when witnesses to the crime 
viewed photographs of possible guilty parties, since therefore there was 
no trial-like confrontation, and since the possibilities of abuse in a 
photographic display are discoverable and reconstructable at trial by 
examination of witnesses, an indicted defendant is not entitled to have 
his counsel present at such a display.\282\

        \282\413 U.S. at 317-21. On the due process standards of 
identification procedure, see infra p.1752.

        Both Wade and Gilbert had already been indicted and counsel had 
been appointed to represent them when their lineups were conducted, a 
fact noted in the opinions and in subsequent ones,\283\ but the cases in 
which the rulings were denied retroactive application involved 
preindictment lineups.\284\ Nevertheless, in Kirby v. Illinois\285\ the 
Court held that no right to counsel existed with respect to lineups that 
precede some formal act of charging a suspect. The Sixth Amendment does 
not become operative, explained Justice Stewart's plurality opinion, 
until ``the initiation of adversary judicial criminal proceedings--
whether by way of formal charge, preliminary hearings, indictment, 
information, or arraignment. . . . The initiation of judicial criminal 
proceedings is far from a mere formalism. It is the starting point of 
our whole system of adversary criminal justice. For it is only then that 
the Government has committed itself to prosecute, and only then that the 
adverse positions of Government and defendant have solidified. It is 
then that a defendant finds himself faced with the prosecutorial forces 
of organized society, and immersed in the intricacies of substantive and 
procedural criminal law. It is this point, therefore, that marks the 
commencement of the `criminal prosecutions' to which alone the explicit 
guarantees of the Sixth Amendment are applicable.''\286\ The

[[Page 1447]]
Court's distinguishing of the underlying basis for Miranda v. 
Arizona\287\ left that case basically unaffected by Kirby, but it 
appears that Escobedo v. Illinois,\288\ and perhaps other cases, is 
greatly restricted thereby.

        \283\United States v. Wade, 388 U.S. 218, 219, 237 (1967); 
Gilbert v. California, 388 U.S. 263, 269, 272 (1967): Simmons v. United 
States, 390 U.S. 377, 382-83 (1968).
        \284\Stovall v. Denno, 388 U.S. 293 (1967); Foster v. 
California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).
        \285\406 U.S. 682, 689 (1972).
        \286\Id. at 689-90. Justices Brennan, Douglas, and Marshall, 
dissenting, argued that it had never previously been doubted that Wade 
and Gilbert applied in preindictment lineup situations and that in any 
event the rationale of the rule was no different whatever the formal 
status of the case. Id. at 691. Justice White, a dissenter in Wade and 
Gilbert, dissented simply on the basis that those two cases controlled 
this one. Id. at 705. Indictment, as the quotation from Kirby indicates, 
is not a necessary precondition. Any initiation of judicial proceedings 
suffices. E.g., Brewer v. Williams, 430 U.S. 387 (1977) (suspect had 
been seized pursuant to an arrest warrant, arraigned, and committed by 
court). United States v. Gouveia, 467 U.S. 180 (1984) (Sixth Amendment 
attaches as of arraignment--there is no right to counsel for prison 
inmates placed under administrative segregation during a lengthy 
investigation of their participation in prison crimes).
        \287\``[T]he Miranda decision was based exclusively upon the 
Fifth and Fourteenth Amendment privilege against compulsory self-
incrimination, upon the theory that custodial interrogation is 
inherently coercive.'' 406 U.S. 688, (Emphasis by Court).
        \288\``But Escobedo is not apposite here for two distinct 
reasons. First, the Court in retrospect perceived that the `prime 
purpose' of Escobedo was not to vindicate the constitutional right to 
counsel as such, but, like Miranda, `to guarantee full effectuation of 
the privilege against self-incrimination. . . .' Johnson v. New Jersey, 
384 U.S. 719, 729. Secondly, and perhaps even more important for purely 
practical purposes, the Court has limited the holding of Escobedo to its 
own facts, Johnson v. New Jersey, supra, at 733-34, and those facts are 
not remotely akin to the facts of the case before us.'' Id. at 689. But 
see id. at 693 n.3 (Justice Brennan dissenting).

        Post-Conviction Proceedings.--Counsel is required at the 
sentencing stage,\289\ and the Court has held that where sentencing was 
deferred after conviction and the defendant was placed on probation, he 
must be afforded counsel at a hearing on revocation of probation and 
imposition of the deferred sentence.\290\ Beyond this stage, however, it 
would appear that the issue of counsel at hearings on the granting of 
parole or probation, the revocation of parole which has been imposed 
following sentencing, and prison disciplinary hearings will be 
determined according to due process and equal protection standards 
rather than by further expansion of the Sixth Amendment.\291\

        \289\Townsend v. Burke, 334 U.S. 736 (1948).
        \290\Mempa v. Rhay, 389 U.S. 128 (1967) (applied retroactively 
in McConnell v. Rhay, 393 U.S. 2 (1968)).
        \291\Counsel is not a guaranteed right in prison disciplinary 
proceedings. Wolff v. McDonnell, 418 U.S. 539, 560-70 (1974); Baxter v. 
Palmigiano, 425 U.S. 308, 314-15 (1976). Other cases are assembled infra 
under analysis of the Fourteenth Amendment due process clause.

        Noncriminal and Investigatory Proceedings.--Commitment 
proceedings which lead to the imposition of essentially criminal 
punishment are subject to the due process clause and require the 
assistance of counsel.\292\ A state administrative investigation by a 
fire marshal inquiring into the causes of a fire was held not to be a 
criminal proceeding and hence, despite the fact that the petitioners had 
been committed to jail for noncooperation, not the type of hearing at 
which counsel was requisite.\293\ Another decision refused to extend the 
right to counsel to investigative proceedings antedating a criminal 
prosecution, and sustained the contempt conviction of private detectives 
who refused to testify before a judge

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authorized to conduct a non-prosecutorial, fact-finding inquiry akin to 
a grand jury proceeding, and who based their refusal on the ground that 
their counsel were required to remain outside the hearing room.\294\

        \292\Specht v. Patterson, 386 U.S. 605 (1967).
        \293\In re Groban, 352 U.S. 330 (1957). Four Justices dissented.
        \294\Anonymous v. Baker, 360 U.S. 287 (1959). Four Justices