The first prong may be further complicated by the three elements which are required to overcome such a designation.  The burden of proof shifts from the prosecutor to the defendant to prove

(1) that the proposed excluded group is a ‘distinctive’ group in the community;

(2) that the representation of this group wherein jury pools are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) most importantly – that this underrepresentation is due to systematic exclusion of the group in the jury process.^[38]  After the defendant overcomes this burden, then he or she must address the second prong.

Recall that the second prong determines whether the jury is willing to make a decision based upon an unbiased approach to the evidence and law in the current case.^[39]  The court held that being unbiased is demonstrated by allowing the jurors to decide the case based only on the evidence presented by the attorneys.  Further, the Court has held that in the absence of an actual showing of bias, a defendant is not entitled to a specific jury composition.^[40]  A violation of a defendant’s right to an impartial jury may be evidenced when the jurors are subjected to pressure or influence which could impair the freedom of action.  In these instances, the court must conduct a hearing to determine whether impartiality exists of one’s own free will.

Another aspect of the Defendant’s right to an impartial jury, is the question of whether the jury must reach a unanimous verdict to convict.  Prior to 2020, only two states, Louisiana and Oregon, allowed juries to convict defendants of serious crimes with less than a unanimous vote, 10-2 rather than 12-0.^[41]  In Ramos v. Louisiana (2020), SCOTUS in a unique majority (Justices Gorsuch, Ginsburg, Breyer, Sotomayor, and Kavanaugh) united to hold that the Sixth Amendment requires unanimity in verdict for a criminal defendant.^[42]  This case is an example of how the court should work when addressing cases through an unbiased lens.  The background of this historic decision follows.  After the Supreme Court invoked the Fourteenth Amendment and ruled that Blacks could not be excluded from juries in Strauder v. West Virginia (1880), Louisiana held a constitutional convention in 1898 to allow for jury convictions by a 9-3 vote, for the sole purpose of ensuring that in the event three Blacks made it onto a jury, a Black defendant could still be convicted by the 9-white person majority.^[43]  The Louisiana constitution was amended in 1973 to require the agreement of ten jurors.^[44]  Louisiana finally amended the state constitution by referendum in 2018 to require unanimous verdicts for serious crimes.^[45]  However, the referendum was not retroactive to cases brought prior to 2019, when the new law became effective. ^[46]

The Supreme Court, in Ramos v. Louisiana (2020), held by a vote of 6-3 that the Sixth Amendment right to a jury trial–as incorporated against the states by way of the Fourteenth Amendment–requires a unanimous verdict to convict a defendant of a serious offense.^[47]  But the Louisiana Supreme Court refused to apply the decision of the U.S. Supreme Court retroactively, resulting in hundreds of individuals remaining in Louisiana prisons after having been convicted by split jury verdicts.^[48]  Specifically, in Edwards v. Vannoy (2021), the court held in a 6-3 verdict that the Ramos v. Louisiana jury-unanimity rule does not apply retroactively to defendant’s with split verdicts.^[49]  Unfortunately, the court split along partisan lines for this decision with Justices Gorsuch, Roberts, Kavanaugh, Barrett, Alito, and Thomas in the majority followed by Breyer, Kagan, and Sotomayor dissenting.

Part III:  Right to Understand Components of Criminal Charges Against a Defendant

and to be informed of the nature and cause of accusation;

Criminal Charges^[50]

This clause explains both why a defendant and how a defendant would be charged.  This information must be given with specificity.  This disclosure extends beyond the present to provide the defendant with the ability to prepare himself or herself for future prosecution.  The defendant is looking for information which may be contained in “the indictment [and this will] apprise him of the crime charged with such reasonable certainty.”  Defendants should obtain this information from the verbiage of the statute, law or ordinance as these sources of law provide the most specific and accurate components of the criminal charges.^[51]

The nature and cause of action, otherwise known as the Notice Clause in the Sixth Amendment, does not contain any specifics such as who, what, when, and where nor provides its purpose.  However, other parts of the United States Constitution as well as other legal authorities help shape this section.  The necessary specifics are revealed through other provisions in the amendments, articles and/or preamble, by contextual history, and by relevant judicial opinions.  For example, according to the Fifth Amendment, if the accused is charged with an infamous federal crime the accusation must be made by the indictment of a grand jury.^[52]  For lesser federal crimes or misdemeanors, an information drafted by a prosecutor or a complaint will suffice.  It should be noted that each state has different requirements and indictments as not required by the Fourteenth Amendment.^[53]

Part IV:  Right to Address Those Who Will Testify Against the Defendant

to be confronted with the witnesses against him;

The Confrontational Clause^[54]

The right to address potential prosecutorial witnesses is central to supporting a fair and impartial trial within our criminal justice system.  Every defendant has a right to appear and confront those who will testify against him or her in a trial.  Thus, this section is entitled the “Confrontation Clause” of the Sixth Amendment.^[55]  In particular, the confrontation clause has two key components.  The Sixth Amendment provision generally guarantees a criminal defendant’s right: 1. to confront an accusing witness face-to-face and 2. to cross-examine that witness.^[56]  Let us examine these components more closely.

First, the right to address witnesses allows the defendant to be present in a hearing or trial against the defendant.^[57]  This right aligns closely with all substantive and procedural due process claims within Federal rules, codes and/or laws, as well as Constitutional amendments to allow a complete support for the defendant during a trial.  Specifically, Federal Rules of Criminal Procedure 43 entitled “Defendant’s presence” indicates when a defendant is required, when a defendant is not required, and when a defendant can waive their requirement to appear. Even still, the right to be present at a trial or hearing against the defendant may be challenged if the witness is at-risk physically, mentally, or any other risks are present.  Even with these risks, the defendant is entitled to examine the witness by some similar means such as closed-circuit television.^[58]

Second and equally important to note is that the “Confrontation Clause” allows the defendant to cross-examine any prosecutorial witnesses in criminal charges against the defendant.  Its significance emphasizes how one may prove their plea of not guilty.  Defendants are allotted two basic pleas of guilty and not guilty.  Innocence is not a plea supported by our adversarial system.  Innocence must be established in a separate evaluation.  Some legal scholars make the distinction between actual innocence and legal innocence. Actual innocence is impossible to prove in a legal setting, but indicates no guilt; whereas legal innocence indicates the prosecutor’s inability to prove beyond a reasonable doubt the elements of a crime.

Finally, with respect to the Confrontation clause, three exceptions exist for the right to confront witnesses against a defendant:

1. Minors or other special categories of persons,  who may suffer irreparable harm when they are face-to-face with a defendant, may testify in chambers or “in camera.”^[59]  This provides privacy and protection for the witness.  In camera is defined as “1. In the judge’s private chambers. 2. In the courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session.”^[60]
2. “[D]eclarations made by a speaker who was both on the brink of death and aware that he was dying,” and
3. “Statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”^[61]

The Supreme Court recently limited the ability of defendants to confront witnesses against them, in the case of Samia v. United States (2023).^[62]  In this case, three individuals were tried jointly for murder and conspiracy to commit murder.  One of the co-defendants signed a confession that he was in the getaway vehicle when the victim was murdered.^[63]  The confession was admitted into evidence, and Defendant Samia was not allowed to confront and cross-examine the confessing co-defendant.^[64]  The Judge instructed the jury not to infer Samia’s guilt from the confession.^[65]  All three were convicted. The Supreme Court, on review, held that the Confrontation Clause of the Sixth Amendment was not violated by the admission of a non-testifying co-defendant’s confession that did not directly inculpate the defendant and was subject to a limiting instruction from the trial Judge.^[66]  The vote was 6-3 and Justice Thomas wrote the majority opinion.^[67]  In dissent, Justice Ketanji Brown Jackson wrote, “The introduction of a ‘testimonial’ statement from an unavailable declarant violates the Confrontation Clause unless the defendant had a prior opportunity for cross-examination,” citing Crawford v. Washington, 541 U.S. 36, 59, 68 (2004).  ^[68]

Part V:  Right to Gather Witnesses to Support the Defendant’s Claims

to have compulsory process for obtaining witnesses in his favor,

Strengthening the Sixth^[69]

According to Black’s Law Dictionary, compulsory process is “[a] process, with a warrant to arrest or attach included, that compels a person to appear in court as a witness.”^[70]  This process may take many forms as indicated by the definition.  Although witnesses may attend voluntarily, compulsory process indicates the legal forcing of witnesses to be present with or without documents.  The right to gather supporting defense witnesses may end in a warrant and/or a subpoena.  Refer to Chapter 5 for the various forms and types of warrants.  With respect to a subpoena, the defendant and their team has many options available as well.  According to Black’s Law Dictionary, subpoena is defined as “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.^[71]

“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, [the accused] has the right to present his own witnesses to establish a defense.  This right is a fundamental element of due process of law.”^[72]

Significant in this definition is the consequence of penalty if a compliancy from the witness does not occur.  For purposes of our text, we will focus on two types of compulsory processes, specifically subpoena ad testificandum and subpoena duces tecum which references both the right to confront witnesses and any procedural and substantive due process rights.

a.  Subpoena ad testificandum

The subpoena ad testificandum is used most often and is referred to as simply a subpoena.  It helps to ensure that defendants are able to give a complete accounting of their defense within a jurisdiction appropriate courtroom.  The defendant is granted access to witnesses by means of their own voices under oath. Further, the subpoena states specifics of where the testimony will occur, who must appear, when the witness must appear as well as why the witness must appear.  Black’s explains subpoena ad testificandum as “[a] subpoena ordering a witness to appear and give testimony.”^[73]  Finally, the right to compulsory process is not absolute and is true of all freedoms and rights in the United States Constitution.

b.  Subpoena duces tecum

Whereas, the right to compel witnesses with documents occur as subpoena ad testificandum but not nearly as much.  This instrument provides the accused with the ability to collect both testimony and relevant and appropriate documents for the accused’s defense.  Subpoena duces tecum is defined as “[a] subpoena ordering the witness to appear in court and to bring specified documents, records, or things.”^[74]  This is a fundamental right for any defendant charged within our criminal justice system.

Part VI:  Right to Assistance of Counsel

and to have the Assistance of Counsel for his defence.

Did you receive ineffective assistance of counsel?^[75]

According to Black’s Law Dictionary, “Defense is defined [as] that which is alleged by a party proceeded against in an action or suit, as a reason why the plaintiff should not recover or establish that which he seeks by his complaint or petition.”^[76]  This right was well established for all criminal defendants who face more than six months of incarceration as a penalty for a criminal charge.  The Supreme Court of the United States has recognized an indigent petitioner or defendant in several cases since Gideon v. Wainwright (1963) where the court acknowledged this Sixth Amendment right.  Gideon was a man who received an elementary education and was charged with breaking and entering in Florida.^[77]

In Gideon (1963), the Court held defendants who face possible prison time are entitled to court-appointed lawyers, paid for by the government.^[78]  Since Gideon, the court has extended this right to defendants where jail time is actually imposed and in misdemeanors with suspended sentences.  Additionally, children in delinquency proceedings, no less than adults in criminal courts, are entitled to appointed counsel when facing the loss of liberty.”^[79]

But the test for effectiveness is quite lax.  Courts routinely condone mediocre lawyering, often because the conviction seems to have been inevitable no matter how the lawyer performed their duties.  The Supreme Court of the United States has consistently stated that the Sixth Amendment guarantees an indigent criminal defendant the right to state-funded counsel in criminal cases.

Thus, the two-prong question which remains for the court: 1. Does the proposed charge meet the requisite penalty for incarceration? 2. Does the defendant meet the legal determination of indigency?

The court may quickly make the determination of requisite penalty by reviewing the penalties from the law.  Upon a determination that the charge meets the penalty, the only question which remains is whether or not a judge will deem the defendant legally indigent?  If the judge deems the defendant indigent, then the defendant will have an attorney appointed.  If it is determined that a defendant is indigent, then the defendant is entitled to the appointment of counsel.  Indigent is defined as “[s]omeone who is found to be financially unable to pay filing fees and court costs and so is allowed to proceed in forma pauperis.”^[81]  Typically, a defendant indicates he or she is unable to afford legal representation.  In most cases, a judge will conduct an evaluation for indigency.  However, if a defendant receives public assistance, this evaluation is waived.  In this case, the judge appoints an attorney if all other requirements are met.  Once this occurs, SCOTUS notes that “failure to appoint counsel as required by the Sixth Amendment serves as a jurisdictional bar to a valid conviction, rendering Constitutionally infirm all convictions in which the indigent criminal defendant is not represented by appointed counsel.”^[82]

Once a judge makes a finding of indigency, a defendant may proceed in forma pauperis.  Black’s Law Dictionary notes in forma pauperis is “Latin for ‘in the manner of a pauper’^[83] which results in an indigent person who is permitted to disregard filing fees and court costs.”^[84]

Forma pauperis from Ambrose Bierce, an American short story writer^[85]

As a point of reference, in Illinois, the judge determines indigency through the methods found in 735 ILCS 5/5-105 (2019 State Bar Edition) in civil cases and 725 ILCS 5/113-3 (2000 State Bar Edition) in criminal cases.  These statutes identify definitions associated with indigency; qualifications for meeting the status of indigency; methods for requesting a finding of indigency; responsibilities in a prosecution or defense of a civil  or criminal matter; evidence of indigency; and the method for applying for indigency.  For further reference and a sample form, click here.

Furthermore, SCOTUS has extended an indigent petitioner’s right to have certain fees and costs waived in domestic relations cases as well.^[86]  Although an indigent defendant is entitled to an attorney, how does the court know when a defendant qualifies for an attorney?  Should the court only regard the indigency of a defendant to determine an appointment of an attorney?

The courts have found several instances where a defendant is entitled to have an attorney present.  The Supreme Court has identified critical stages as to when this right is Constitutional.^[87]  A critical stage is considered “[a] point in a criminal prosecution when the accused’s rights or defenses might be affected by the absence of legal representation.”^[88] 

1. Is each part of the Sixth Amendment equally important?  Why or why not?
2. During the criminal justice process, when is the accused entitled to have a lawyer present?
3. Review https://www.legalrightscenter.org/juries.html.  What additional information do you learn about voir dire, peremptory challenges, and jury duty.
4. Is it ever logical for a defendant to proceed in a criminal case without an attorney?  Why or why not?
5. According to the 6th Amendment, are there more opportunities for the defendant’s Constitutional rights to be violated before or after an accused comes into custody?