Policing | Section 3.4

Fundamentals of Policing by Adam J. McKee

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The Sixth Amendment


“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 defense.”

Perhaps one of the most confusing legal issues face is the difference between Miranda rules and Due Process requirements.   In law enforcement practice, the majority of interrogations occur before a suspect’s right to counsel under the Sixth Amendment “kicks in.”  Prior to this, Miranda rules (and due process rules) are the primary concerns.  This does not mean that officers don’t worry about procedural requirements prior to the Sixth Amendment governing an encounter with a suspect.  If procedural rules are not complied with in all situations, then any statements made by the suspect may be regarded as involuntary by the courts, and subsequently excluded from evidence.

Once the Sixth Amendment right to counsel attaches, officers have an additional set of procedural rules to follow.  The nature and scope of these rules are substantially different than the voluntariness requirement concerns that arise under the Sixth Amendment.  Recall from the previous section that the Court’s ruling in Miranda was largely based on the Fifth Amendment prohibition against self-incrimination.      

The Right to Counsel.  In Gideon v. Wainwright (1963), the court ruled that appointed counsel was required for an indigent state court defendant facing six months or more of incarceration.  Since this landmark case was decided, appointed counsel has been required in any circumstance where a person may be incarcerated for punishment.

Gideon v. Wainwright

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.  Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad.  He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.  He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

The Right to a Speedy and Public Trial.  In some countries, both in the past and still today, defendants may wait months or years in confinement awaiting a trial.  Such trials are typically hidden from public view. To assure fairness, the Constitution guarantees Americans a public trial. Consequently, prosecuting attorneys cannot wait an unreasonable amount of time before filing charges or proceeding with the prosecution after filing charges. To construct more specific rules for ensuring a speedy trial, Congress passed the federal Speedy Trial Act.   The Act requires that a trial begins within 70 days of the prosecutor filing charges.

The Right to an Impartial Jury.  Citizens have a guaranteed right to be judged by a jury of their peers.  In the modern era of plea bargaining, this right is often waived for the guarantee of a lighter sentence or a lesser charge.

Key Terms

References and Further Reading


Modification History

File Created:  08/15/2018

Last Modified:  04/19/2019

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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