The Bill of Rights: Article VI

Before we start today's discussion of the Sixth Amendment to the Constitution, I should note yesterday's announcement of a landmark and (from my somewhat cynically jaded perspective) wholly unexpected Supreme Court decision in the case of United States v Jones (docket number 10-1259). In a unanimous verdict, the Court decided that law enforcement authorities need a search warrant in order to plant a GPS tracker on a suspect in order to follow him around the clock.

Coming from a profoundly conservative court which has come up with howlers like Citizens United v Federal Election Commission and Kelo v City of New London (both of which we've discussed before), this is an amazing decision which strikes a decisive blow for your rights under the Fourth Amendment (which we discussed last week in this post). While I suspect that my friends in the law enforcement community (of which I have many, and with whom I sympathize) will view this as a disaster, I think it was a righteous decision that could not have been rendered in any other way. The Founders never foresaw the power of GPS in an era when cutting-edge navigation technology was the sextant, but I'm sure they'd have had the same concerns most of us had about its use as a means of government control of citizens.

But we're here today to talk about the Sixth Amendment, which reads:

"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."

This is a very important right that we don't usually think about unless we find ourselves accused of a crime. It ensures that we have the right to a trial by a jury of our peers ...

and to be informed of the charges against us (you may recall Franz Kafka's classic novel The Trial, in which the unfortunate Josef K stands accused of a crime, but has no idea what that crime is, what the evidence against him is, who has accused him, or pretty much anything else about the allegations ... there wasn't a Sixth Amendment in Kafka's time).

The Sixth Amendment gives you the right to call witnesses in your own defense, to face your accusers, and to be represented by counsel for your defense.

Like many of our other rights, those guaranteed by the Sixth Amendment are periodically put into jeopardy.

In the time of the so-called "war on terror," we are told that many cases cannot be prosecuted in open court because of the "classified" nature of the evidence, or that prosecution witnesses cannot be produced because it would threaten their usefulness as sources of intelligence about other crimes. The famous Miranda Decision of 1966, which we all know from generations of warnings recited to miscreants on television police dramas, contains the guarantee that a lawyer will be provided for an accused person if he (or she) can't afford one. Of course, the court-appointed lawyer probably won't be from the sort of top-flight multi-partner legal firm that major corporations and the wealthy can afford, but it's something.

And that part about a "speedy" trial? Well, as we know, trials can drag on for years as both sides roll out reinforced divisions of lawyers and specialized witnesses, file endless motions for this or that, and generally try to keep the case going until the participants forget the original issue or die of old age. Charles Dickens knew what he was writing about when he wrote the story of the Jarndyce vs Jarndyce case in his great novel, Bleak House.

The Sixth Amendment is your friend when you're in trouble. While the other Amendments of the Bill of Rights deal generally with your rights as a law-abiding citizen, the Sixth protects you when you have been accused of a crime. You may never actually need your Sixth Amendment rights, but if you do ... you'll be glad they're there. They may be frustrating to the law enforcement community, and provide endless opportunities for lucrative reimbursement for legal professionals, but they're vital for your protection and a wonderfully far-sighted gift from the Founders.

Have a good day. Remember to invoke the right Miranda ...

More thoughts tomorrow.

Bilbo