In all criminal prosecutions, the accused shall enjoy the right to… have compulsory process for obtaining witnesses in his favor….
–Amendment VI
For centuries, Britons had struggled against the common-law rule that forbade an accused from calling witnesses in his defense in cases of treason or felony, or, even when allowed, not to permit the defense witness to be sworn under oath. The common-law rule survived in the American colonies even after England had abolished it by statute.
After the Revolution, however, a number of state constitutions established in one form or another the right to call defense witnesses. The clause assured that the accused in a criminal case was guaranteed not only the right to call witnesses but also a process to obtain witnesses, so that defense evidence could be evaluated by a jury or, in a nonjury criminal case, by a judge. It was, in sum, an essential part of the right of an accused to present a defense.
Unlike other Sixth Amendment guarantees, the right to call witnesses is totally at the defendant’s initiative. It is not unlimited, but subject to reasonable* restrictions. Taylor v. Illinois (1988). The ordinary rules of evidence apply to the exercise of the right. The Compulsory Process Clause, for example, does not guarantee a defendant the right to use polygraph evidence in a jurisdiction that forbids such evidence. United States v. Scheffer (1998).
(*OPINION: Reasonable? According to whom?)
In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.
–Amendment VI
By affording a right to assistance of counsel, the Founders specifically meant to reject the English practice of prohibiting felony defendants from appearing through counsel except upon debatable points of law that arose during trial. After the Glorious Revolution in England (1688), Parliament passed a statute allowing those accused of treason to appear through counsel. The Framers clearly meant to extend the right to be heard through counsel to cases of felony as well as treason.
As to the level of criminal charge that triggers the right to counsel, the courts have never complied with the literal meaning of the Sixth Amendment. In this instance, at least, “all” does not mean “all criminal prosecutions”: it means some. Petty offenses have been adjudicated without counsel from the time of the Founding to this day. The traditional understanding of petty offenses included misdemeanors punishable by less than six months in jail. The modern Supreme Court has held that no offense can be deemed petty for purposes of the exception to the right to counsel if the accused does in fact receive a sentence that includes incarceration, howsoever brief.
Amendment VI is contravened by Patriot Act provisions vis-a-vis the right to legal representation. The government may monitor conversations between attorneys and clients in federal prisons and deny lawyers to those accused of crimes. Under the anti-terrorism laws, the government may jail Americans indefinitely without a trial.
Despite the existence of a tradition in the United States of respect for the rule of law, and the presence of self-correcting mechanisms under the US Constitution, it is sad that a number of important mechanisms for the protection of rights have been removed or obfuscated under law and practice.
(OPINION: “Land of the free?”)
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