Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government.  Rather, they are rights that are deemed to already exist preserved from governmental deprivation.  The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states  “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice.  The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence.  Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty.   The protections of the 6th Amendment have been said to be “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.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice.  First, it minimizes the threat that mere public accusation could create in its absence.  Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen.  The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify.  Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice.  Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right.  But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins.  This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers.  They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial.  The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence.  This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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March 22, 2012 

Essay #24 

7 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The right to a speedy trail has been defanged much by the move away from the Common Law to the newer Case Law basis of jurisprudence. By abandoning the Common Law, the purpose of rights, namely the right of an impartial jury of peers, has been obscured and even reversed. Nowadays juries are selected on the pretense that they must be unbiased. But that was not so in the beginning. Juries are supposed to be biased. They are supposed to be biased as peer citizens living in the same vicinage as the accused. They are supposed to already know the character of the accused and likely the character of the accuser. James Madison even objected to the wording of amendments acknowledging the right to a jury of the same state of the crime committed as putting at risk that the jury would be biased against the accused by the media for being summoned from the far corners of the state and not having any reasonable knowledge of the accused. What a jury is supposed to be is impartial, meaning, “without a conflict of interest”. The difference is that the juror cannot be party to the accused.

    If juries were stacked with people who truly are peers, then the right to a speedy trial would be most assured; because no longer would the prosecution be able to sway a jury with an imagined character of the accused for the jury would be quick to see through the smoke and mirrors of perjured persons. Modern days trials are exorbitantly lengthy these days because of a gross abandonment of these civil rights rooted in the Common Law.

    • Linda & Halley
      Linda & Halley says:

      Agree with you completely! The Framers knew that providing a trial by jury in cases that were criminal was critical. They considered this, and after concluding that the right to this Constitutional protection might not be strong enough, added the reinforcement of this right by stating specifically that the trial must not be held in secrecy or dragged on and on, thus giving real teeth to the Sixth Amendment.

      Halley: Hey, let’s hear it, for Amendment Six…quick trial! Fair trial! A jury I pick!

  2. Marc W. Stauffer
    Marc W. Stauffer says:

    On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA), codifying indefinite military detention without charge or trial into law for the first time in American history. The NDAA’s dangerous detention provisions would authorize the president — and all future presidents — to order the military to pick up and indefinitely imprison US citizens, without trial, captured anywhere in the world, far from any battlefield. The Fourth Amendment grants liberty from unreasonable seizures, while the Sixth guarantees every U.S. citizen a trial in front of a jury. No matter what supporters of the bill might have said about the provisions being misunderstood, the simple fact is that it is unconstitutional. A sad day for our rights indeed.

  3. Barb Zakszewski
    Barb Zakszewski says:

    The sad truth is this: Every since the day Obama took office with his promise to fundamentally transform America, that is exactly what he has done. Going through the Constitution article by article and amendment by amendment, dismantling what he can. And sadly, Congress is aiding in that endeavor. As for a speedy jury trial by peers, it is getting impossible to find impartial jurors. The internet and television try most cases in the media, never giving the justice system time to work, giving new meaning to a “speedy trial”. Witness Casey Anthony and now Trayvon Martin. The media stirs up as much sensation and drama as they can and always manage to find people who never met a camera and a microphone they did not like. There is such a rush to judgement now, it’s like a pack of hungry, angry wolves. It is getting to be a very sad day for our rights..

  4. Cynthia Dunbar
    Cynthia Dunbar says:

    I completely agree that our rights and liberties have been tremendously abridged by the substitution of the historical common law with the contemporaneous understanding of common law. This modern version created by the perversion of stare decisis has become an excuse for the judicial usurpation of Article I authority of the legislature. Once we moved away from the understanding in Swift v Tyson of the existence of a Federal Common Law, and that the common law historically understood as the uncodified rules of law that had been adopted at one time by all 13 colonies, into the Erie doctrine, it was the beginning of the end of the Rule of Law. The irony is that while Erie did away with the real common law, it enacted through judicial activism and case precendence a new form of common law. It is this common law or tertiary law that is taught in every ABA approved Law School in the U.S. It is no wonder that most lawyers, judges and legal scholars today have no difficulty accepting the supremacy of the Judiciary to determine constitutionality and make law from the bench. They spend all three years not studying the primary and secondary laws of the land; they ignore the Constitution and statutes. Rather they spend all 3 years studying case law which is nothing more than the misnomer of judge-made law. Shocking then that we have lost our understanding of the Constitution, isn’t it? For everyone who reads our history and cares let us keep proclaiming the truth of our Constitutional Republic before we loose it!


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