Skip to main content

Legal Features

Fundamental Rights Assured

By James W. Haley Jr.
From the Freelance Star

Written by George Mason and adopted in 1776 by the Virginia legislature, the Virginia Declaration of Rights provided a philosophical and historical source - indeed, much of the precise language - for the concepts contained in the Bill of Rights.

The Founders framed the Sixth Amendment to the Constitution, which deals with the rights of defendants in criminal prosecutions, in response to perceived abuses by the British government in criminal cases. But the pioneering influence of the Virginia Declaration can be seen in each of the six clauses they incorporated in the amendment.

Amendment VI reads as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial (1), by an impartial jury (2) 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 (3), to be confronted with the witnesses against him (4), to have the compulsory process for obtaining witnesses in his favor (5), and to have the assistance of counsel for his defense (6)."

(1) A defendant is entitled to a trial in a reasonable period of time after he is arrested for a crime. The Constitution does not state, nor has the U.S. Supreme Court determined, a specific period within which a trial must begin.

But the Virginia General Assembly has. Basically, that period is five months if the accused is incarcerated and nine months if he is not. The public may not be barred from observing a criminal trial; there can be no criminal trial in secret. The defendant has a right for the public - other citizens - to actually observe the manner in which he is tried. This serves to ensure that his criminal trial and others are fundamentally fair.

(2) A criminal defendant has an absolute right to be tried by a jury if that is his choice. An impartial jury is one assembled from a pool of citizens, drawn by lot, at random, from which a jury is selected. The court, the prosecutor and the defendant (through his counsel if he chooses to have counsel) make inquiry of this pool, and only those "who stand indifferent to the cause" - and who swear to decide the case solely on the evidence and the law - may serve.

Though the Constitution does not specify the number of jurors, the established law of England set that number at 12 for a felony.

(3) An accused has the right to know the specific crime with which he is charged so he can prepare a defense. In Franz Kafka's chilling novel, "The Trial," the central character, Joseph K., is arrested and asks, "But what for?" He is told: "We are not authorized to tell you that." Joseph K. is ultimately executed without ever knowing with what crime he is charged.

Notification of the nature of the crime is generally called an arraignment. The defendant is told specifically what statute he is alleged to have violated, asked if he understands what the government must prove to find him guilty under that statute, called upon to enter his plea and asked if he wishes to be tried by a jury.

A defendant may never be tried for a crime unless he has previously been arraigned for that crime.

(4) In 1603, Sir Walter Raleigh was tried by a jury for treason against the British Crown. The government produced a letter written by, and a transcript of answers to questions put to, one Lord Cobham, in evidence against Raleigh.

Raleigh protested: "Let Cobham be here, let him speak it. Call my accuser before my face." Raleigh wanted to confront Cobham, to require him to testify in his presence, and then to cross-examine him. Raleigh's objection was overruled, the Cobham evidence admitted, and Raleigh convicted and sentenced to death.

The "confrontation" clause of the Amendment VI ensures, generally speaking, that "testimony" will never be admitted as evidence against a criminal defendant unless that testifier is physically present and testifying in the presence of the accused, face to face, and thus subject to cross-examination.

(5) After arraignment a defendant knows the charge against him. He can prepare his defense - and his defense often requires witnesses to be in court to testify in support of that defense.

How can he ensure that they will come to court? By "compulsory process" - that is, a witness subpoena, an order from the court directing a person to appear in that court, on a specific date, to testify in a specific case. If a material and necessary defense witness is served with a subpoena and does not appear, generally a defendant cannot be tried until that witness is present.

(6) A defendant has the right to the assistance of a lawyer in his defense, if he chooses to have one. Initially, this clause meant that a defendant could not be denied a lawyer by the government. However, the Supreme Court decided in 1963 that this clause was not just a shield but also a sword - and that a defendant had a right to a lawyer, at public expense if he could not afford one.

Thus developed the public-defender systems, which provide counsel for indigent defendants at taxpayer expense.

Amendment VI of the Constitution is a collection of words. But words alone do not protect criminal defendants. Judges enforcing the rights set forth in the Sixth Amendment protect criminal defendants. The oath of office taken by every judge in the United States requires that he or she swear to "support the Constitution of the United States."

Haley is a judge of the state Court of Appeals. His commentary is not intended as any statement of the law and reflects his observations only, not those of the Court of Appeals.


Copyright 2023 © The Rutherford Institute • Post Office Box 7482 • Charlottesville, VA 22906-7482 (434) 978-3888
The Rutherford Institute is a registered 501(c)(3) organization. All donations are fully deductible as a charitable contribution.