Guest Essayist: Nathaniel Stewart, Attorney

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.


Sixth Amendment Overview

The Sixth Amendment is the centerpiece of constitutional criminal procedure.  It forms the framework, the underlying first principles governing the process by which our society will try and treat those accused of a crime.  As the English legal philosopher, William Blackstone, famously quipped, “better that ten guilty persons escape than that one innocent suffer,” expressing the ancient axiom—dating even to Genesis—that the law should be made to punish the guilty, but not the innocent.[1]

The Sixth Amendment sets out the legal strictures and protections designed to protect society from its criminals, and protect the innocent from society.  To secure these protections, the Amendment prescribes three sets of rights: (1) the right to a speedy trial; (2) the right to a public trial; and (3) the right to a fair trial.

The Founding-generation was well aware that a speedy trial was a fundamental right of Englishmen.  It was approved by the First Congress without discussion.  The right to a speedy trial protects several related liberty interests, namely, the individual’s interests in avoiding a prolonged pretrial detention and in minimizing reputational damage due to an unjust or false accusation.  It protects the innocent from suffering a de facto punishment—a lengthy pre-trial detention—before ever having the chance to defend himself.  Furthermore, ensuring a speedy trial also helps to facilitate a fair trial—one designed to discover the truth of the matter, not just a verdict—since a prolonged delay may harm the accused’s legal defense as memories fade, evidence is lost or destroyed, or witnesses die or move away.  The Founders made sure that the government could not merely charge the accused with a crime, infringe upon his liberties, damage his public reputation, and then fail to give him a legal forum for mounting a defense and clearing himself of the allegations.  A defense must be afforded quickly, for as another old saying goes, “justice delayed is justice denied.”[2]

The right to a public trial is “a trial of, by, and before the people.”[3] As one legal scholar succinctly put it, a trial should be “a public thing, the people’s thing,” and included in the right to a public trial are “the rights to (a) a trial held in public, (b) featuring an impartial jury of the people, (c) who come from the community where the crime occurred.”[4] The Founders would not sanction secret criminal proceedings, and there was a deep Anglo-American tradition that trials be open and public spectacles.  The Supreme Court acknowledged as much when it wrote: “by immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”[5] Public trials serve a number of purposes in a number of ways, chief among them an added protection for the innocent.  As Professor Amar has noted, “Witnesses for the prosecution may be less willing to lie or shade the truth with the public looking on; and bystanders with knowledge of the underlying events can bring missing information to the attention of the court and counsel.  A defendant will be convicted only if the people of the community (via the jury) believe the criminal accusation—believe both that he did the acts he is accused of, and that these acts are indeed criminal and worthy of the community’s moral condemnation.”[6]

Finally, the Sixth Amendment’s protections provide the accused with a fair trial, affording him protections against an erroneous guilty verdict.  We see this expressed in the constitutional right to an attorney—that is, the right to defense counsel—and “to be informed of the nature and cause of the accusation,” as well as the right “to be confronted with the witnesses against him,” and the right to obtain “witnesses in his favor.” The process for trying the accused is to be fair and impartial.  If the government can martial its lawyers to prosecute, the accused must be entitled to the same.  If the government can prepare its case for accusation, the accused must know of the charges.  If the government can bring forth witnesses to testify against the defendant, the defendant must be allowed to confront them in open court and before a jury of his peers, and he is entitled to call witnesses on his own behalf.  These procedural protections, too, are part and parcel of a Constitution constructed with deliberate checks and balances designed to preserve both liberty and order in a free society.

The constitutional right to a speedy, public, and fair trial at least helps to ensure—though it cannot guarantee—a just result, and it encourages the public’s continued confidence in a criminal justice system whereby all men are presumed innocent until proven guilty.

Nathaniel Stewart is an attorney in Washington, D.C.

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March 30, 2012

Essay #30

[1] See, Genesis 18:23-32: “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?[3] … What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’”

[2] Often attributed to William Gladstone.

[3] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).

[4] Id.

[5] In re Oliver, 333 U.S. 257 (1948).

[6] Akhil Reed Amar, “Forward: Sixth Amendment First Principles,” 84 Georgetown L. J. 64 (1996).


3 replies
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    As flawed as our system has become, it still affords us the opportunity to defend our liberty and to keep our rights intact. We need to remember that many countries do not afford the accused any rights and their “Lady Justice” is politically compromised and prejudiced by the prevailing powers.

    Reading Nathaniel’s summary reminds me that the justice system we have is like a chain and is only good if its “links” remain connected. Take any one of the links
    (speedy trial, public venue, right of facing accuser, knowledge of accusations, right to equal counsel, compelling supporting witnesses, impartial jury of peers) out, and the chain of justice fails and our “Lady Justice” takes off her blindfold.

  2. barb Zakszewski
    barb Zakszewski says:

    Excellent analysis and essay summarizing the elements and importance of the 6th Amendment. Alluding to Marc’s analogy above, it does seem that the links in the chain break sometimes, especially in this day and age. In today’s society, speedy and public trials are often conducted in the public spotlight, on the nightly news, on the Internet, and in the newspapers.. the Court of public opinion. Unfortunatley, a mob mentality exists that is often difficult to suppress. We must fight hard to ensure that the justice system and the elements of the 6th amendment have a chance to work.

  3. Patricia Birren-Wilsey
    Patricia Birren-Wilsey says:

    I echo the above posts regarding Amendment VI. Although nothing is without flaw (for human beings are imperfect), our beloved Constitution and its amendments are works of art that must be upheld for their inherent protections. Yes, there will always be abuse of our judicial system, but with the persevering vigilance of honourable citizens, there is good reason to count on the pristine integrity of those works of art.

    Thank you for your fine essay, Mr. Stewart, and eternal appreciation to ConstitutingAmerica!


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