The Rights of the Accused under the Sixth Amendmen: Trials, Presentation of Evidence, and Confrontation, Third Edition

by Paul Marcus, David Duncan, Joelle Moreno

Overview

Both criminal defense lawyers and criminal prosecutors must thoroughly understand the rights of the accused under the Sixth Amendment in order to provide competent service and ensure that they are following all court procedures according to the rule of law. The Rights of the Accused under the Sixth Amendment provides an in-depth look at seven key aspects of this area of the law:

• The right to a speedy trial;
• The right to a jury trial;
• The right to a public trial;
• The place of prosecution;
• The right to be informed of the nature and cause of the accusations;
• The Confrontation Clause; and
• And the Compulsory Process Clause.

This third edition includes up-to-date coverage of the relevant case law and discussion of the Sixth Amendment in the context of emerging challenges—particularly the right to a speedy trial under the extraordinary circumstances of a global pandemic.

Product Details

ISBN-13:	9781641059480
Publisher:	American Bar Association
Publication date:	06/01/2022
Sold by:	Barnes & Noble
Format:	eBook
Pages:	275
File size:	1 MB

About the Author

Paul Marcus is the Haynes Professor of Law at the College of William and Mary. Formerly the law dean at the Universityof Arizona, his teaching and research interests are in the criminal justice, comparative law, and intellectual property areas. He has spoken to numerous judicial, bar, and university groups in the U.S., and has taught and lectured in several other nations. He is a graduate of the UCLA School of Law. Prior to going into teaching, Professor Marcus clerked on the United States Court of Appeals for the District of Columbia, and practiced law in Los Angeles. He is the author of several books in the criminal justice area and has written numerous articles in the field as well. 

David K. Duncan is a United States Magistrate Judge sitting in Phoenix. He is chair of the Ninth Circuit's Magistrate Judges Executive Board and has been a member of that Circuit's Magistrate Judges Education Committee. Prior to joining the District Court in 2001, he was an Assistant United States Attorney. Before government service, he was a partner in the Phoenix firms of Osborn Maledon, P.A., and Meyer, Hendricks, Victor, Osborn & Maledon, P.C. He attended Brown Universityand the Universityof Arizona. He obtained his J.D., with high distinction, from the Universityof Arizona, where he was an editor of the Arizona Law Review and a member of The Order of the Coif. He served as a law clerk to the Hon. William D. Browning, U.S. District Judge in Tucson.

Tommy Miller is a United States Magistrate Judge for the Eastern District of Virginia. He is also an adjunct professor of law at the College of William and Mary, teaching both criminal and civil courses. Judge Miller served on the Advisory Committee on Criminal Rules and participated in the restyling of the Federal Rules of Criminal Procedure. He has spoken to many judicial and bar groups and was a member of the Federal Judicial Center's Magistrate Judge Education Committee. Prior to becoming a judge, he was the Deputy Chief of the Criminal Division for the U.S. Attorney's Office in the Eastern District of Virginia. He graduated from the College of William and Mary Law School.

Joëlle Anne Moreno (co-author) is a Professor of Law and the Associate Dean for Faculty Research & Development at Florida International University. A former federal prosecutor at the United States Department of Justice, her work focuses on the constitutional constraints on the police (including the future of the Confrontation Clause) and the misuse of pseudosci entific evidence by courts (including childhood vaccine claims and specious defenses to child abuse cases). She has presented her work to judges, academics, and practitioners at numerous legal, medical, and scientific conferences around the world. Professor Moreno is a graduate of the Universityof Pennsylvania Law School and Swarthmore College, and perhaps most importantly to a native New Yorker, Stuyvesant High School.

Table of Contents

About the Authors ix

Acknowledgments xi

Preface xiii

Chapter 1 The Right to a Speedy Trial 1

I Historical Basis 1

II Constitutional Speedy Trial Issues 2

A Delay in Charging or Arresting the Defendant 2

B Postcharge or Postarrest Delay 6

C Delay in Sentencing and Supervised Release Violations 8

D Delay in Appeals 9

E Sanctions for a Constitutional Violation of the Speedy Trial Right 9

III Dismissals Pursuant to Federal Rule of Criminal Procedure 48 11

A History of Rule 11

B Dismissal under Federal Rule of Criminal Procedure 48(b) 11

IV Federal Speedy Trial Act 12

A General Time Limitations 13

B Exceptions and Tolling Provisions 14

C Sanctions for Violating the Statute 19

V State Speedy Trial Provisions 21

A State Constitutional Provisions 21

B State Speedy Trial Statutes 23

VI Speedy Trial Requirements in the Interstate Agreement on Detainers 26

A Introduction 26

B Provision for Speedy Trial on Request of the Prosecutor 26

C Provisions for Speedy Trial on Notice by Prisoner 27

D Sanctions 27

VII Speedy Trial Issues in a Pandemic 28

Chapter 2 The Right to a Public Trial 31

I Historical Origin of the Right 31

II Whose Right Is It? 33

A Right of the Accused 33

B Right of the Public under the First Amendment 34

C Incorporation of the Sixth Amendment Public Trial Right 34

III Interests Served by the Public Trial Right 35

IV When May a Trial Be Closed? 36

A Overriding Interest That Is Likely to Be Prejudiced 37

B Closure Must Be No Broader Than Necessary 39

C Trial Court Must Consider Reasonable Alternatives 39

D Findings Adequate to Support the Closure 40

V Partial Closures 40

VI Application to Different Phases of the Proceedings 41

VII Assertion of the Right 43

VIII Remedy for a Violation 43

IX Trivial or De Minimis Closures 44

X Public Trial Implications for Cooperating Defendants 45

XI The Impact of Pandemic Concerns on the Right 47

Chapter 3 The Right to a Jury Trial 53

I Historical Basis and Constitutional Language 53

A Development in England 53

B American Colonial Experience 54

II Petty versus Nonpetty Offenses 56

A Background 56

B Unresolved Applications 57

III Application of the Right 59

A Contempt Actions 59

B Juvenile Proceedings 60

C Deportation Matters 60

D Sentencing 61

IV Size of Juries in Criminal Cases 63

A Historical Basis for Twelve Jurors 63

B Fewer Than Twelve Jurors 63

C Federal Juries 64

D State Juries 65

E Unanimity 66

V Unanimity in Criminal Proceedings 66

A Constitutional Principles 66

B Waiver 67

C Deadlocked Juries and the Allen Charge 68

D States and the Allen Charge 70

VI Waiver of Jury Right 72

VII Jury Selection 75

A Eligibility for Service 75

B Qualifications 75

C Death Penalty Prosecutions 77

D Jury Makeup 78

VIII Challenging Jurors 82

A Information Given to the Lawyers, Understanding Voir Dire 82

B Process of Voir Dire 82

C Challenges for Cause 83

D Peremptory Challenge 84

IX Disclosing the Identity of Jurors 90

A Standards to Enforce Anonymity 90

B First Amendment Analysis 94

X Jury Nullification 96

Chapter 4 Place of Prosecution 101

I Historical Basis 101

II Venue 103

A Distinguished from Jurisdiction 103

B In General 103

C State Practice 104

III Transfer for Trial 105

A Waiver of Venue 106

B Federal Rule of Criminal Procedure 21 108

C State Rules on Venue Transfer in Criminal Cases 110

D Motion to Transfer 111

E The Judicial Test 120

F Multiple Transfers 121

IV Specific Venue Issues 122

A Multiple Jurisdiction Crimes 122

B Crimes Not Committed in a District 124

C Multiple Defendant Crimes 124

D Failure to Act Crimes 125

E Accessories 125

F Crimes Furthered through Electronics 125

G Crimes Furthered through the United States Mail 127

H Crimes Committed on Airplanes in Flight 127

Chapter 5 The Right to Be Informed of the Nature and Cause of the Accusations 129

I When an Indictment or Information Is Required in Federal Prosecutions 129

A Definitions 129

B The Indictment 130

C Waiver 131

D The Information 132

II When an Indictment Is Required in State Prosecutions 132

A Generally 132

B Indictment 133

C Waiver of the Indictment 133

D States That Use an Information 133

III Grand Juries 134

A Historical Basis 134

B Composition and Selection 135

C The Process 135

D The Critique 137

IV The Preliminary Hearing 137

V Waiver of the Indictment Requirement 140

A Federal 140

B States 141

VI Challenging the Sufficiency of the Indictment 142

VII Claims of Duplicity and Multiplicity 143

A Duplicity 143

B Multiplicity 145

VIII Bill of Particulars 147

IX Secret Indictments 149

Chapter 6 The Confrontation Clause 151

I The History of Confrontation 151

II The Supreme Court's Early Confrontation Jurisprudence 154

A Confrontation Defined 154

B Incorporation to the States 156

III The Right to Confrontation, 1968 to 2004 156

A Defining the Scope of Confrontation 156

B Limiting the Scope of Confrontation 160

C Special Confrontation Cases: Statements from Child Witnesses 162

IV The Revitalized Confrontation Clause: Crawford v. Washington 165

A The Facts 165

B Ohio v. Roberts (Partially) Overruled 166

C A New Focus on the Text and History of the Confrontation Clause 167

D The Advent of the "Testimonial Statement" 168

V The Right to Confrontation from 2004 to the Present: The Crawford Doctrine in the Federal and State Courts 170

A A New Focus on the Primary Purpose of the Interrogation and the Ongoing Emergency Exception 170

B Defining the Primary Purpose of the Interrogation or Statement and the Ongoing Emergency Exception 171

C The Importance of the Formality of the Statement and Interrogation 176

D Reliability Redux 179

E The U.S. Supreme Court Revisits the Primary Purpose Test and the Ongoing Emergency Requirement 180

VI Forfeiture of the Right to Confrontation 186

VII The Right to Confront Expert Witnesses 189

A Recognizing the Right to Confront Experts 189

B Defining the Right to Confront Experts 191

C Narrowing the Right to Confront Experts 194

D Changes to the Court and the Right to Confront Experts 198

E New Cases and Statutes That May Limit the Right to Confront Experts 199

VIII The Right to Confront Witness under Specific Circumstances 200

A Official Records 200

B Special Circumstances 205

C Nonhearsay Statements 207

D Statements to Nonofficials 212

IX The Right to Confrontation in Nontrial Proceedings 213

X Confrontation and Codefendant Confessions 215

A The Bruton Rule 215

B Applying Crawford to Limit Bruton 217

Chapter 7 The Compulsory Process Clause 219

I Historical Foundations of the Compulsory Process Clause 219

A Development of Compulsory Process in England 219

B Development of Compulsory Process during the American Colonial and Revolutionary Periods 221

C Compulsory Process as a Constitutional Right 221

II Compulsory Process and the Supreme Court 223

A The Treason Trial of Aaron Burr 223

B Incorporation of the Right to Compulsory Process to the States 224

C Defining the Scope of the Right to Compulsory Process 224

D Limiting the Right to Compulsory Process 228

E Interference with the Right to Compulsory Process 235

Index 241