DISCUSSION OF THE 6TH AMENDMENT
To The United States ConstitutionAmendment 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." U.S. Const. amend. VI.
LEGAL DEFINITION
Guarantee Of Adequate Notice. The Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges against him. In order to determine whether a defendant has received constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). "The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense." Id.
http://www.lectlaw.com/def2/s107.htm
The Sixth Amendment guarantees a criminal defendant the fundamental right to be clearly informed of the nature and course of the charges in order to permit adequate preparation of a defense. See Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1990). The notice provision of the Sixth Amendment is incorporated within the Due Process Clause of the Fourteenth Amendment and is fully applicable to the states. See Gray v. Raines, 662 F.2d 569, 571 (9th Cir. 1991).
An accused has "a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense." Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1989). Thus, "Due process entitles an accused to know the charges against which he must defend in order to have a reasonable opportunity to prepare and present a defense and not be taken by surprise at trial." Usher v. Gomez, 775 F. Supp. 1308, 1313 (N.D. Cal. 1991), aff'd, 974 F.2d 1344 (1992), cert. denied 113 S. Ct. 1007 (1993).
The Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges against him. In order to determine whether a defendant has received constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). "The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense." Id.
A murder trial is not one of the "games that people play." The due process clause does not serve as an innocent bystander. It acts as the umpire and referee all rolled into one and calls "foul" where rules of fair play are broken. As Justice Scalia noted, paraphrasing the felicitous expression of Justice Holmes seventy years earlier, due process requires the government to "turn square corners." Jones v. Thomas, 491 U.S. 376, 396 (1989)(Scalia, J., dissenting). Society is obliged to prosecute those who break its rules, but society may not break its own rules in the prosecution process.
The U.S. Constitution regulates the division of labor between judge and jury. The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." The U.S. Supreme Court recently declared, "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." United States v. Gaudin, 115 S. Ct. 2310, 2320 (1995); see also Sullivan v. Louisiana, 113 S. Ct. 2078, 2080 (1993); In re Winship, 397 U.S. 358, 364 (1970). While the jury is the arbiter of the facts, the judge is the arbiter of the law: "the judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." Gaudin, 115 S. Ct. at 2315 (citing Sparf & Hansen v. United States, 156 U.S. 51, 105-06 (1895)). However, the jury has a constitutional responsibility "not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence." Id. at 2316.
In Gaudin, the U.S. Supreme Court affirmed the long-standing rule that juries have the constitutional duty to decide mixed questions of law and fact, 115 S. Ct. at 2314, and held that whether a matter is material is such a mixed question. Id. at 2320.
6th Amendment defensive court strategy
Here's a sample defensive strategy to consider employing in courts using the 6th Amendment (right to assistance of counsel)
Pre-trial Examination notes:
Sir/Judge, before this pre-trial examination begins I have the following statement to make for the record.
Notice: Let it be known that Article 6 of the Bill of Rights of the Constitution for the united States... secure my right to assistance of counsel for my defense in a criminal proceeding. In this regard and applying the holding of the U.S. Supreme Court in Johnson v. Zerbst, (cite 304 U.S. 458 (1938)) to this instant case, I give notice as follows:
1) That this court is not complete until I have Assistance of Counsel;
2) That Assistance of Counsel is a jurisdictional perquisite;
3) That until I obtain Assistance of Counsel this court has no jurisdiction to proceed in this matter; and
4) That this court's jurisdiction is lost in any proceeding until I obtain Assistance of Council; and any hearing, trial, judgment, or sentence is void until I have Assistance of Counsel.Furthermore, for the record, let it be known that I do not now have assistance of counsel; and, that I have not knowingly and intentionally waived my right to assistance of counsel in the past; and, that I do not waive my right to assistance of counsel now. Therefore, this court has no jurisdiction to hold this pre-trial examination, and until I have assistance of counsel I respectfully decline to participate any further in these proceedings.
Finally, let the record so show, that there is a clear absence of jurisdiction in this court as I am without Assistance of Counsel, and it was held in the adjudged decision of the U.S. Supreme Court in Stump v. Sparkman (cite 435 U.S. 339 (1978)) that with a clear absence of jurisdiction the judge becomes civilly liable. That is the end of my statement. I have nothing further to say.
If questioned by the judge answer:
* "Sir, I am unlearned in the law, and I would like to answer your question, but until I can obtain Assistance of Counsel secured in the Sixth Amendment of the U.S. Constitution...I must decline to answer. * Ask for 30 days to obtain assistance of counsel. Use voir dire or questionnaire letter to solicit counsel. (None will accept!)
30] Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. When this right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence.
If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.
A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court -- as the Sixth Amendment requires -- by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. *fn22
If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. *fn23
A judge of the United States -- to whom a petition for habeas corpus is addressed -- should be alert to examine "the facts for himself when if true as alleged they make the trial absolutely void." *fn24
http://www.reason.
com/blog/ show/116720. html
Most people are still under the quaint assumption that you can't be punished for a crime for which you've been acquitted.
Not true. In cases where a defendant is convicted of some of the charges against him but acquitted of others, the state can pursue a sentence that includes punishment for the acquitted charges.
Yes. You read that correctly. A recent decision from a U.S. district court in Virginia is unusually candid in pointing out the absurdity of the practice, which is apparently pretty common:
After an eleven-day trial, a jury acquitted defendant Michael Ibanga of all of the drug distribution charges against him and one of the two money laundering charges against him in the Indictment. The single count of which defendant Ibanga was convicted typically would result in a Guidelines custody range of 51 to 63 months. However, the United States demanded that the Court sentence defendant Ibanga based on the alleged drug dealing for which he was acquitted. This increased the Guidelines custody range to 151 to 188 months, a difference of about ten years. …
What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham.
From the public’s perspective, most people would be shocked to find out that even United States citizens can be (and routinely are) punished for crimes of which they were acquitted.
The opinion itself is refreshingly abrupt and scathing, and seems to have come from the pen of a pretty fed-up judge. It includes a history of the right to a jury trial, and quotes from Dickens.
As Cato's Tim Lynch explains, extra jail time for acquitted charges both encourages prosecutors to over-charge defendants, and encourages defendants to accept plea bargains -- knowing that at trial they could well be sentenced for crimes they didn't commit.
If you're wondering if all of this is a violation of the Sixth Amendment, well, if the Sixth Amendment means anything at all, it most certainly is. But we're talking mostly about drug crimes, here -- where the Bill of Rights doesn't apply.
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...
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined ....
Despite these two amendments, the mission of the Fully Informed Jury Association must be taught everywhere, because people do not know the Constitution and they do not know jury rights and when prosecuted they are therefore intimidated into waiving their rights and accepting plea bargains.
For instance, I have been approached for help by a young woman in prison in Alabama. I have not yet read the transcript, but her mother informed me that this girl had severe back pain and went with her husband in the car to the pharmacy for some pain pills. She did NOT get out of the car and her husband stole some pain medication.
Consequence: her husband accepted a plea and was sentenced to twenty years. Her lawyer said she was innocent and to go to court. She was sentenced to thirty years. When they threaten you with a longer sentence if you do not accept a plea, they mean it and Jurors who know their rights are the only ones who can get justice for defendants.
I am told that over 90 percent of federal cases are plea bargains. A couple purchased some pseudo ephedrine for a neighbor and knew enough to check that it was not an illegal substance.
However, the feds decided to prosecute them for conspiracy to manufacture meth. I don't believe that charge, having been to Fort Payne to interview the family. Shannon and Michele were scared that they would be sent up for life as the prosecutor told them, and entered pleas. They got long sentences anyway.
Please go to www.fija.org and read up on your rights.
Margi
