The Constitution of the United States of America: Analysis and Interpretation Part 163

[325] Henkels _v._ Sutherland, 271 U.S. 298 (1926). _See also_ Phelps _v._ United States, 274 U.S. 341 (1927).

[326] Monongahela Nav. Co. _v._ United States, 148 U.S. 312, 327 (1893).

[327] United States _v._ Jones, 109 U.S. 513, 519 (1883).

[328] Bauman _v._ Ross, 167 U.S. 548, 593 (1897).

[329] United States _v._ Lee, 106 U.S. 196, 220 (1882).

[330] Jacobs _v._ United States, 290 U.S. 13 (1933); United States _v._ Great Falls Mfg. Co., 112 U.S. 645 (1884).

[331] Hurley _v._ Kincaid, 285 U.S. 95 (1932).

[332] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641, 659 (1890).

[333] United States _v._ Russell, 13 Wall. 623 (1871).

[334] Shoemaker _v._ United States, 147 U.S. 282, 302 (1893).

AMENDMENT 6

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Page Coverage of the amendment 877 Offenses against the United States 877 Trial by jury 878 Impartial jury 879 Place of trial 880 Definition of crime 881 Right of confrontation 884 a.s.sistance of counsel 884

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Amendment 6

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 a.s.sistance of Counsel for his defense.

Coverage of the Amendment

Criminal prosecutions in the District of Columbia[1] and in incorporated territories[2] must conform to this amendment, but those in unincorporated territories need not.[3] For this purpose, Alaska was held to be an incorporated territory even before the organization of its territorial government.[4] In in re Ross[5] the requirements of this amendment were held to cover only citizens and others within the United States or who are brought to the United States for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[6] Accordingly, laws pa.s.sed to carry into effect treaties granting extraterritorial rights were not rendered unconst.i.tutional by the fact that they did not secure to an accused the right to trial by jury.

Offenses Against the United States

There are no common law offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes.[7] As used in the Const.i.tution the word "crime" embraces only offenses of a serious character. Petty offenses may be proceeded against summarily in any tribunal legally const.i.tuted for that purpose.[8] The nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty.

A penalty of $50 for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[9] The unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[10] But a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[11] A conspiracy to invade the rights of another person also falls in that category.[12]

Actions to recover penalties imposed by act of Congress,[13] deportation proceedings[14] and contempt proceedings[15] for violation of an injunction have been held not to be criminal prosecutions. Only a prosecution which is technically criminal in its nature falls within the purview of Amendment VI.[16] The concept of a criminal prosecution is much narrower than that of a "criminal case" under the Fifth Amendment.[17]

Trial by Jury

The trial by jury required by the Const.i.tution includes all the essential elements of jury trial which were recognized in this country and in England when the Const.i.tution was adopted;[18] a jury must consist of twelve men, neither more nor less;[19] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[20] and the verdict must be unanimous.[21] But the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the Government and the approval of the court. There is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[22] When a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no const.i.tutional right is violated by removing him to another jurisdiction for trial on a later indictment.[23]

Impartial Jury

"* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Const.i.tution."[24]

The qualification of government employees to serve on juries in the District of Columbia has been the princ.i.p.al source of controversy concerning the meaning of the phrase "impartial jury." In 1909, the Supreme Court decided, on common law grounds, that such employees were disqualified in criminal proceedings inst.i.tuted by the Government.[25]

As the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. To meet the situation, Congress removed the disqualification by statute in 1935. In United States _v._ Wood,[26] the act was held valid as applied in a criminal prosecution for theft from a private corporation. By a narrow majority the Court has subsequently held that government employees as a cla.s.s are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[27] nor against an officer of the Communist party charged with willful failure to appear before a Congressional committee in compliance with a subpoena.[28] In both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias.

The Const.i.tution does not require Congress to allow peremptory challenge to jurors in criminal cases. Consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[29] It is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. But every opinion which a juror may entertain does not necessarily disqualify him. Upon the trial of the issue of fact raised by such a challenge, the Court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[30] A member of the Socialist party is not denied any const.i.tutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[31]

Place of Trial

An accused cannot be tried in one district under an indictment showing that the offense was committed in another;[32] the locality in which the offense is charged to have been committed determines the place and court of trial.[33] In a prosecution for conspiracy, the accused may be tried in any State and district where an overt act was performed.[34] Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.[35] The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[36] or the sending of excluded matter through the mails,[37] may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[38] The Const.i.tution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[39] The a.s.signment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[40] For offenses against federal laws not committed within any State, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.[41] The place of trial may be designated by statute after the offense has been committed.[42]

Definition of Crime

The effect of the clause ent.i.tling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. It adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. Under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[43] A criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[44] cannot be squared with this provision. Thus it was held, in the United States v. Cohen Grocery Co.,[45] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconst.i.tutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[46] But a provision of the Immigration Act[47]

which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other doc.u.ments necessary to his departure" is not, on its face, void for indefiniteness.[48]

An important aspect of this problem was presented, but not definitely settled, in Screws _v._ United States.[49] There State law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the Const.i.tution of the United States.[50] The indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. The defendant claimed that the statute was unconst.i.tutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[51] Four opinions were written in the Supreme Court, no one of which obtained the concurrence of a majority of the Justices. To "avoid grave const.i.tutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific const.i.tutional right,"[52] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconst.i.tutionality on the grounds of vagueness."[53] Justices Murphy and Rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to antic.i.p.ate doubts that might arise in other cases.[54] However, to prevent a stalemate, Justice Rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. Justices Roberts, Frankfurter and Jackson found the act too indefinite to be rescued by a restrictive interpretation. With respect to the effect of the requirement of willfulness, they said: "If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully'

bringing to pa.s.s such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' It is true also of a statute that it cannot lift itself up by its bootstraps."[55] In Williams _v._ United States,[56] however, it was held by a sharply divided Court that -- 20 did not err for vagueness where the indictment made it clear that the const.i.tutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[57]

Statutes prohibiting the coercion of employers to hire unneeded employees,[58] establis.h.i.+ng minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[59] forbidding undue or unreasonable restraints of trade,[60]

making it unlawful to build fires near any forest or inflammable material,[61] banning the receipt of contributions by members of Congress from federal employees for any political purpose,[62] or penalizing the copying or taking of doc.u.ments connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the United States or to the advantage of a foreign nation,[63] have been held to be sufficiently definite to be const.i.tutional. A provision penalizing excessive charges in connection with loans from the Home Owners Loan Corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[64] nor was a statute forbidding misstatement of the quant.i.ty of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[65]

The const.i.tutional right to be informed of the nature and cause of the accusation ent.i.tles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[66] No indictment is sufficient if it does not allege all of the ingredients which const.i.tute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[67] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[68] If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[69] Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[70] The Const.i.tution does not require the Government to furnish a copy of the indictment to an accused.[71]

Right of Confrontation

The right of confrontation did not originate in the Sixth Amendment; it was a common law right having recognized exceptions. The purpose of the const.i.tutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[72] The amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[73] It does not preclude the admission of dying declarations,[74]

nor of the stenographic report of testimony given at a former trial by a witness since deceased.[75] An accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[76]

If the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a United States Commissioner cannot be used at the trial.[77] A statute which declared that the judgment of conviction against the princ.i.p.al felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the United States, was held to contravene this clause.[78]

a.s.sistance of Counsel

The Sixth Amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the a.s.sistance of counsel.[79] Since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[80] The right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[81] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[82] The right may be waived by a defendant whose education qualifies him to make an intelligent choice.[83] A sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the Government, where the defendant did not have the a.s.sistance of counsel and had not understandingly waived the right to such a.s.sistance.[84]

Notes