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JULY 1994

Article 14 - Right to Fair Trial

The court systems in the United States grant both 
citizens and nationals of other countries the fair 
trial rights embodied in Article 14 of the Covenant.  
The principles and practices of the justice system 
in the federal government, in the 50 states, and in 
the various territories and dependencies trace their 
roots to the federal Bill of Rights adopted two 
centuries ago and outlined in more detail in Part I 
of this report.  The federal and state constitutions 
and statutory law provide for fair and public 
hearings.  An independent judiciary, as well as an 
independent and active bar, are dedicated to the 
ideal and reality of fair trials and elaborate 
appellate procedures.

While not perfect, the American court systems do not 
remain static but constantly adapt to evolving 
notions of fairness and due process.  Over the past 
40 years, for example, problems of racism in jury 
selection and discrimination in the administration 
of justice were addressed head on.  Constitutional 
rights of defendants were expanded markedly in 
several controversial rulings by the Supreme Court 
of the United States.

As the Republic enters its third century, the 
changing nature of crime will no doubt lead to 
further changes in the administration of justice.  
However, our federal and state systems are all bound 
by the mandatory and minimum guarantees of the 
federal Constitution.  The Constitution is the base 
beneath which no state or federal court may depart, 
though greater protections than the minimum can be 
found in various state or federal laws.

I.  Fair and Public Hearing  

Criminal Cases.  The Due Process Clause of the Fifth 
Amendment to the U.S. Constitution provides that, 
"No person shall . . . be deprived of life, liberty, 
or property, without due process of law."  That 
provision, applicable to the states through the 
Fourteenth Amendment, guarantees criminal defendants 
the right to a fundamentally fair trial at all 
levels of government.  As the Supreme Court has 
explained, however, the Fifth and Fourteenth 
Amendments guarantee the right to a fair trial, but 
not to a perfect trial.  Delaware v. Van Arsdall, 
475 U.S. 673, 681 (1986).  Thus, although mistakes 
may occur at trial, a reviewing court will 
nonetheless affirm a criminal conviction if it 
determines that the mistakes were harmless.  To 
affirm a criminal conviction in the case of an error 
involving constitutional rights, the reviewing court 
must determine beyond a reasonable doubt that the 
error did not contribute to the verdict.  Chapman v. 
California, 386 U.S. 18, 23 (1967).  For trial error 
that is not of constitutional dimensions, the 
reviewing court must determine with "fair assurance 
. . . that the judgment was not substantially swayed 
by the error."  Kotteakos v. United States, 328 U.S. 
750, 765 (1946).

The Sixth Amendment guarantees federal defendants 
"in all criminal prosecutions . . . a speedy and 
public trial."  This right has been extended to 
defendants in state criminal proceedings through the 
due process clause of the Fourteenth Amendment.  In 
re Oliver, 333 U.S. 257 (1948).  The constitutional 
guarantee of a public trial does more than ensure 
fairness to defendants.  It ensures public 
confidence in the fairness of the criminal justice 
system and responsible performance by judges and 
prosecutors.  It also provides an outlet for 
community reaction to crime, and encourages 
witnesses to come forward and to testify truthfully.  
Waller v. Georgia, 467 U.S. 39 (1984).  Because of 
these public interests, the right to a public trial 
is not merely a right of the criminal defendant 
under the Sixth Amendment.  For example, the First 
Amendment provision that "Congress shall make no law  
. . . abridging the freedom of speech, or of the 
press" has been deemed to protect the right of the 
public and the press to have access to a criminal 
trial.  Richmond Newspapers v. Virginia, 448 U.S. 
555 (1980) (granting access to press and public to 
criminal trial).  See also Globe Newspaper Co. v. 
Superior Court, 457 U.S. 596 (1982) (state cannot 
prevent press and public access to criminal trials 
without a compelling governmental interest, narrowly 
tailored).  The Supreme Court has also granted press 
access to preliminary hearings and jury voir dire.  
Press-Enterprise Co. v. Superior Court of 
California, 478 U.S. 1 (1986) (preliminary 
hearings); Press- Enterprise Co. Superior Court of 
California, 464 U.S. 501 (1984) (voir dire).  But 
see Gannett Co. v. DePasqucle, 443 U.S. 368 (1979) 
(denying access to pretrial suppression hearing 
where publicity could taint jury pool).

Thus, even though a defendant may offer to waive his 
right to a public trial and request a closed 
proceeding, the public and press have a 
constitutionally protected right of access to the 
trial under the First Amendment.  Singer v. United 
States, 380 U.S. 24 (1965).  The law must balance a 
defendant's desire for closure (motivated, for 
example, by a desire to protect his privacy or to 
reduce the possibility of adverse publicity that 
could deny him an impartial verdict) or the 
prosecution's similar desire (for example, to 
protect the secrecy of ongoing criminal 
investigations or the privacy rights of particular 
witnesses or victims) against the constitutionally 
protected public interest in open proceedings.  

To restrict public access to a criminal trial or to 
a discrete portion of one, the trial judge must find 
that closure is essential to preserve higher values 
-- such as the defendant's right to a fair trial -- 
and the closure order must be narrowly tailored to 
serve those values.  Press-Enterprise Co. v. 
Superior Court (Press-Enterprise I), 464 U.S. 501 
(1984).  When a court closes a trial in whole or in 
part, it must make specific factual findings so that 
a reviewing court may evaluate the propriety of the 
order.  Moreover, the media or an individual party 
may make an immediate and expedited appeal to a 
higher court from an order closing part of the 
criminal proceeding.  

Notwithstanding the right of public access to court 
proceedings, the decisionmaking process in a 
criminal trial, as well as in other proceedings, is 
not open to the public.  Jurors deliberate entirely 
in secret so that their views can be candidly 
expressed without reservation.  Discussions between 
judges or between a judge and the judge's clerk are 
also privileged against public disclosure.  

Competent, Independent and Impartial Tribunal.  The 
Due Process Clauses of the Fifth Amendment and the 
Fourteenth Amendment guarantee criminal defendants 
certain fundamental rights deemed essential to a 
fair trial. For example, a criminal defendant has 
the right to an unbiased judge, an impartial jury 
free from unfair influences, and a trial free of 
outside distractions and disruption.  Due process is 
violated if the trial is conducted in a manner or 
atmosphere that likely rendered the jury unable to 
give the evidence reasonable consideration.  The 
competence of the lay jury is augmented by the fact 
that the judge instructs the jury on applicable 
legal principles.  Where the instructions are 
incorrect on critical legal points the conviction is 
subject to reversal.  Sullivan v. Louisiana, 113 S. 
Ct. 373 (1993);  United States v. Diaz, 891 F.2d 
1057, 1062-63 (2d Cir. 1989).

Federal criminal trials (except trials for certain 
petty offenses) are overseen by district court 
judges who are nominated by the President, and must 
be confirmed by the U.S. Senate, according to 
Article III of the U.S. Constitution.  Unlike the 
executive and legislative branches of the federal 
government, the judicial branch is nonpolitical.  
Baker v. Carr, 369 U.S. 186 (1962).  Once nominated 
and confirmed, Article III judges serve lifetime 
tenure "during good behavior."  Thus, after their 
appointment through a political process, the judges 
are independent of the political branches and serve 
life tenure unless removed by impeachment.  Art. I, 
  3 cl. 6.  Not only are Article III judges not 
easily removed from office, but Congress also cannot 
reduce their salaries in an effort to induce their 
resignation.  This provision  protects against 
Congressional efforts to punish judges for past 
decisions or to indirectly influence future judicial 
decisions.  Art. III,   1.

Among the reasons for which Article III judges may 
be impeached is conviction of a felony.  In the 
history of the United States only 11 federal judges 
have been removed from their position by 
impeachment.  Within the past few years, two judges 
have been impeached based upon criminal convictions, 
and another federal judge was impeached even after 
having been acquitted of criminal charges.  

Because the constitutional provision of lifetime 
tenure may protect judges whose competency or 
conduct is open to question, a federal statute 
provides a detailed mechanism whereby other Article 
III judges may investigate whether a judge should be 
removed for misconduct or is otherwise unable to 
discharge all the duties of his office by reason of 
mental or physical incapacity.  Should the 
investigating panel determine that the judge is not 
competent, they can take certain remedial action 
short of removing the judge from office.  28 U.S.C. 

Another guarantee of judicial independence is the 
provision of absolute immunity from civil liability.  
Litigants unhappy with anything that occurs in the 
course of an investigation into their conduct or 
with the result of their trials cannot sue the 
judges.  The remedy for an incorrect ruling is 
reversal by a higher court, not a lawsuit against 
the judge personally.  Bradley v. Fisher, 80 U.S. 
335 (1872).

The U.S. Constitution does not require that federal 
judges have legal training.  However, as a practical 
matter, present-day federal judges are selected from 
among lawyers.  In the confirmation process, the 
Senate examines, among other factors, the competence 
and legal experience of the judicial nominee.  Once 
appointed, federal judges receive continuing legal 
and judicial education, as well as other technical 
and administrative support, from the Federal 
Judicial Center; that entity, too, is under the 
control of the judicial branch.  28 U.S.C.    620 et 

Petty offenses (for which the maximum term of 
imprisonment is less than six months) may be 
prosecuted before federal magistrates, who are 
appointed by the judges of the district court and 
serve for eight years.  Federal law defines the 
minimum qualifications for appointment to be a 
federal magistrate.  One such requirement is that 
the magistrate be an attorney admitted to the 
practice of law for at least five years.  28 U.S.C. 

The methods of selection and the roles of judges 
within the state systems vary widely.  States have 
the power to prescribe the ways judges are selected, 
Sugarmann v. Dougall, 413 U.S. 634, 647 (1974); 
Lefkovitz v. State Board of Elections, 400 F. Supp. 
1005, 1015 (N.D. Ill. 1975), aff'd, 424 U.S. 901 
(1976), as well as their eligibility and 
qualifications, Gruenburg v. Kavanagh, 413 F. Supp. 
1132 (E.D. Mich. 1976).

States may also set appropriate standards of conduct 
for their judges.  Gruenburg v. Kavanagh, 413 F. 
Supp. at 1135.  An American Bar Association Code of 
Judicial Conduct has been adopted by a majority of 
the jurisdictions in the United States, and is of 
hortatory if not mandatory force in others.  Canon 1 
of the Code of Judicial Conduct requires that "[a] 
judge shall uphold the integrity and independence of 
the judiciary."  Canon 2 requires that "[a] judge 
shall avoid impropriety and the appearance of 
impropriety in all of the judge's activities."  
Canon 3 requires that "[a] judge shall perform the 
duties of judicial office impartially and 
diligently."  This canon dictates, for example, that 
a judge disqualify himself or herself whenever the 
judge's impartiality might reasonably be questioned.  
Canon 4 requires that "[a] judge shall so conduct 
the judge's extra-judicial activities as to minimize 
the risk of conflict with judicial obligations."  
Canon 5 requires that "a judge or judicial candidate 
shall refrain from inappropriate political 

To ensure that the legislative or executive power of 
any state is not invoked to weaken the independence 
of the judiciary, the constitutions of many states 
prescribe certain fundamental conditions under which 
the judicial branch operates.  State court judges 
may be popularly elected or appointed, and may serve 
any length of term, as prescribed by the 
constitutions and statutes of individual states.  
Some states elect judges by popular vote.  The 
fairness of judicial elections is governed by the 
Voting Rights Act of 1965, as amended in 1982. See 
42 U.S.C.    1971 et seq.  The Supreme Court has 
determined that for purposes of the Voting Rights 
Act, a judge who wins an election in the district in 
which the judge runs is a "representative" of that 
district.  Chisom v. Roemer, 501 U.S. 380 (1991).  
This determination has resulted in the resolution 
and settlement of a number of lawsuits which 
challenged the fairness of state judicial elections.

Most of the states require their judges to be 
lawyers, or at least learned or well informed of the 
law.  Most also provide for the removal of judges on 
the ground of incompetency.  Finally, most states 
select judges by appointment, which may be made by 
the governor, the highest court of the state, or the 
state legislature.  

Many states are beginning to adopt some type of 
merit selection system out of concern that the 
election and political appointment systems 
compromise judicial independence. The merit system 
attempts to weed out the political element at the 
initial stage by restricting the power of nomination 
to a specialized commission, usually consisting of 
lawyers, legal scholars, and citizens.  The 
appointing authority, whether it is the governor, 
court, or legislature, can appoint judges only from 
the list submitted by the nomination commission.  
Several cases challenging the fairness of some 
states' merit selection systems are currently 

Due process requirements prohibit a judge from 
presiding over a criminal trial where the judge's 
impartiality may reasonably be questioned.  In re 
Murchison, 349 U.S. 133, 138-39 (1955) (due process 
violated when judge charged defendants with contempt 
because judge could not free himself of influence of 
own personal knowledge of what occurred in secret 
grand jury session);  United States v. Diaz, 797 
F.2d 99, 100 (2d Cir. 1986) (per curiam) (due 
process violated when sentencing judge wrote letter 
to senator four days after trial complaining of 
leniency of sentences required by statutes because 
judge's impartiality may reasonably be questioned), 
cert. denied, 488 U.S. 818 (1988).  In federal 
courts, statutes require recusal if a party to the 
proceeding files an affidavit showing the judge is 
biased or prejudiced either against such party or in 
favor of an adverse party, 28 U.S.C.   144, or 
whenever the judge s impartiality reasonably may be 
questioned, 28 U.S.C.   455(a).  Recusal also would 
be required if the judge, the judge s spouse or 
other family member, is a party to the proceeding, 
is acting as a lawyer for one of the parties, is 
likely to be a material witness, or has financial 
interests in the proceeding.  Even though the judge 
may not be the factfinder at the trial, bias on the 
part of the trial judge can require reversal of the 
criminal conviction on appeal. 

Trial By Jury.  The Sixth Amendment also provides 
that "in all criminal prosecutions, the accused 
shall enjoy the right to . . . trial, by an 
impartial jury of the State and district wherein the 
crime shall have been committed."  This right to a 
jury trial applies to any federal or state offense 
for which imprisonment for more than six months is 
authorized.  Duncan v. Louisiana, 391 U.S. 145, 149 
(1968).  However, the right does not apply in 
juvenile court proceedings or military trials.

The right to trial by jury reflects "a profound 
judgment about the way in which law should be 
enforced and justice administered."  Duncan v. 
Louisiana, 391 U.S. at 155.  In the U.S. system, the 
jury is the factfinder.  Therefore, a judge may not 
direct the jury to return a verdict of guilty, no 
matter how strong the proof of guilt may be.  Sparf 
and Hansen v. United States, 156 U.S. 51, 105-6, 

The right to an impartial jury requires that the 
jury be selected from a representative cross-section 
of the community in which the crime was committed.  
The jurors must, however, be competent.  In federal 
criminal trials there are minimum statutory 
standards of competency, including that the juror be 
at least 18 years of age, literate in English, have 
been a resident of the district for at least one 
year, otherwise physically and mentally able to sit 
as a juror, and not have been convicted of a felony 
or be currently facing a criminal felony charge.  28 
U.S.C.   1865(b). 

To ensure the impartiality of the jury, the trial 
court must conduct a voir dire examination of 
prospective jurors to discover any potential bias.  
In cases of high publicity, the court must be extra 
cautious to ensure that jurors have not been 
influenced by the publicity.  The trial court may 
exclude for cause any prospective juror who will be 
unable to impartially render a verdict based on the 
evidence.  The voir dire is also designed to examine 
juror competency, and the trial court may excuse 
jurors for lack of competency (i.e. mental or 
physical impairment, or lack of language 

In addition to removal for cause, as the act of 
striking jurors by the judge is called, statutes 
provide that the parties may remove jurors through 
the use of peremptory challenges.  Peremptory 
challenges permit the parties to exclude a certain 
number of jurors without any explanation to the 
court, except in limited instances.  In federal 
criminal trials, Federal Rule of Criminal Procedure 
24(b) provides that in cases punishable by death 
each side may exercise 20 peremptory challenges; for 
felonies (crimes punishable by more than one year in 
prison) the prosecution may use six peremptory 
challenges and the defendant or defendants jointly 
may exercise 10 challenges.  Where there are 
multiple defendants the trial court may allow 
additional peremptory challenges to be used.  While 
removal of jurors for cause is constitutionally 
based, the use of peremptory challenges to remove 
jurors is not a constitutional right.

However, where peremptory challenges are permitted, 
the parties may not use them deliberately to exclude 
members of a racial or ethnic group, or of a 
particular sex.  Batson v. Kentucky, 476 U.S. 79 
(1986); Powers v. Ohio, 499 U.S. 400 (1991); J.E.B. 
v. Alabama Ex Rel. T.B., 62 U.S.L.W. 4219 (April 19, 
1994).  At the same time, the defendant also is not 
entitled to deliberately exclude members of a racial 
or ethnic group from the jury.  Georgia v. McCollum, 
112 S.Ct. 2348 (1992).  

Where the jury is the fact-finding tribunal, the 
historic number of jurors is 12.  The Supreme Court 
has held that the Sixth Amendment allows state 
juries to be composed of fewer than 12 (but more 
than five) members.  Williams v. Florida, 399 U.S. 
78, 102-3 (1970).  In federal criminal proceedings, 
the rules provide for a 12-member jury, but the 
parties may stipulate, in writing and with the 
approval of the court, to waive a twelve-member 
jury.  Fed. R. Crim. P. 23(b).  Rule 23(b) also 
allows the trial judge to proceed with fewer than 12 
jurors even without stipulation if the court finds 
it necessary to excuse a juror for just cause during 
deliberation.  Each state may set the size of its 
jury so long as it is constitutionally permissible.  
Juries in state criminal trials usually have between 
six to twelve jurors.

In federal jury trials, the jury must be unanimous 
in returning its verdict for conviction or 
acquittal.  Andres v. United States, 333 U.S. 740, 
748-49 (1948); Fed. R. Crim. P. 31(a).  If the 
jurors cannot agree, the judge declares a mistrial 
and the government is free to prosecute the 
defendant again before a different jury.  

In state jury trials, a conviction by a nonunanimous 
verdict of a 12-member jury satisfies the Sixth 
Amendment.  Apodaca v. Oregon, 406 U.S. 404, 411-12 
(1972) (upheld conviction by 10 votes of 12-member 
jury); Johnson v. Louisiana, 406 U.S. 356, 359-63 
(1972) (upheld conviction by nine votes of 12 member 
jury).  However, if the state has a six-member jury 
system, the verdict must be unanimous.  Burch v. 
Louisiana, 441 U.S. 130, 134 (1979).  The Supreme 
Court has not addressed the question of unanimity 
where the juries are composed of more than six but 
fewer than 12 members.  Id. at 138 n.11.

Public Access to Judgments and Records.  The public 
and the press have the right, under the First 
Amendment, to records of criminal cases ending in 
acquittal, dismissal, or finding no probable cause, 
unless the state or the defendant demonstrates a 
compelling interest in nondisclosure, as well as to 
those ending in conviction.  Furthermore, at common 
law, the public has the right to inspect and copy 
public records, including judicial records.  Nixon 
v. Warner Communication, 435 U.S. 589, 598 (1978).  

This right may be restricted in certain limited 
circumstances.  An important exception to the rule 
favoring public dissemination applies to grand jury 
material.  Information secured by the grand jury in 
the course of its investigation is also protected 
from public disclosure, both traditionally and by 
operation of the Federal Rules of Criminal 
Procedure. See Butterworth v. Smith, 494 U.S. 624, 
629-30 (1990); Fed. R. Crim. Pro. 6(e).  In 
particular, Rule 6(e)(2) provides: 

     A grand juror, an interpreter, a stenographer, 
an operator of a recording device, a typist who 
transcribes recorded testimony, an attorney for the 
government, or any person to whom disclosure is made 
under . . . this subdivision shall not disclose 
matters occurring before the grand jury, except as 
otherwise provided for in these rules.  No 
obligation of secrecy may be imposed on any person 
except in accordance with this rule.  A knowing 
violation of Rule 6 may be punished as a contempt of 

Grand jury secrecy is critical to our system; the 
Supreme Court has spoken repeatedly about "'the 
indispensable secrecy of grand jury proceedings.'"  
United States v. R. Enterprises, 498 U.S. 292, 299 
(1991), quoting United States v. Johnson, 319 U.S. 
503, 513 (1943).  Grand jury secrecy serves several 
distinct and compelling public interests:  it 
encourages witnesses to come forward and testify 
freely and honestly; it minimizes risks that 
prospective defendants will flee or use corrupt 
means to thwart investigations; it safeguards the 
grand jurors themselves from extraneous pressures 
and influences; and it protects accused persons who 
are ultimately exonerated from unfavorable 
publicity.  Douglas Oil Co. v. Petrol Stops 
Northwest, 441 U.S. 211 (1979).  To the extent that 
information is secured by the grand jury in its 
investigation, it is presumptively nonpublic unless 
and until the judge enters an order permitting its 
disclosure upon a showing of specialized need.  Fed. 
R. Crim. P. 6(e).

There are other instances in which the rule of 
public disclosure is not followed.  Juvenile records 
may be sealed or expunged, and the public would not 
have access to such records outside very limited 
circumstances.  For example, federal laws permit the 
disclosure of juvenile records only for certain 
specified purposes, such as the preparation of a 
pre-sentence report for another court or an on-going 
investigation. 18 U.S.C.   5038.  Many states also 
forbid the publication of the names of rape victims 
or of children who are victims in criminal cases. 
See, e.g., Florida Stat. Ann   119.07(2)(h); Wyo. 
Stat.   6-2- 310.  Other state's laws may strongly 
urge the media to exercise self-restraint but do not 
subject publication to some form of sanction.  See, 
e.g., Wis. Stat.   950.055.  However, such laws 
could be unconstitutional, as a violation of the 
First Amendment, if applied to journalists who 
receive the information from public authorities.  
See The Florida Star v. B.J.F., 491 U.S. 524 (1989) 
(civil damages on newspaper for printing rape 
victim's name violated freedom of the press); 
Oklahoma Publishing Co. v. District Court, 430 U.S. 
308 (1977) (per curiam) (state court's pretrial 
order preventing press from publishing name/photo of 
juvenile charged with murder violated freedom of the 

Federal law also regulates and restricts the 
disclosure of other sensitive information.  The 
Classified Information Procedures Act (CIPA), 18 
U.S.C. Appendix III (1980), is triggered in cases 
involving classified national security information.  
CIPA requires the trial court to conduct a hearing, 
upon motion of the government, to examine the use, 
relevance, or admissibility of the classified 
information.  If the court authorizes the disclosure 
of such information, the government may, in lieu of 
disclosing the information, submit a statement 
admitting relevant facts that the information would 
tend to prove, or submit a summary of the 
information.  The trial court should allow these 
alternative methods of disclosure "if the statement 
or summary will provide the defendant with 
substantially the same ability to make his defense 
as would disclosure of the specific classified 
information."  Id.   6.  If, however, the court 
decides that the classified information at issue may 
not be disclosed, the records of the hearing would 
be sealed and preserved for appeal.  Id.   6.

Civil Cases.  Guarantees of fairness and openness 
also are ensured in the civil context, with federal 
and state constitutions providing basic and 
essential protections.  While protections in civil 
disputes might not match those that exist in 
criminal proceedings, the fundamental features of 
the United States judicial system -- an independent 
judiciary and bar, due process and equal protection 
of the law -- are common to both.

Most importantly, the Due Process and Equal 
Protection Clauses of the Constitution -- applicable 
to the states through the Fourteenth Amendment -- 
mandate that judicial decision-making be fair, 
impartial, and devoid of discrimination.  
Neutrality, of course, is the core value.  As 
members of the Supreme Court repeatedly have 
emphasized, "the right to an impartial decisionmaker 
is required by due process" in every case.  Arnett  
v. Kennedy, 416 U. S. 134, 197 (1974)  (White, J., 
concurring in part and dissenting in part).  Indeed, 
because the "appearance of evenhanded justice . . . 
is at the core of due process," Mayberry v. 
Pennsylvania, 400 U.S. 455, 469 (1971)  (Harlan, J., 
concurring), the Court has held that even 
decisionmakers who in fact "have no actual bias" 
must be disqualified if there might be an appearance 
of bias.  Morrissey v. Brewer, 408 U.S. 471, 485-86  
(1972).  See also Goldberg v. Kelly, 397 U.S. 254, 
271 (1971).  Specifically, this means that a judge 
possessing a personal interest in a case should be 
precluded from taking part in it, Gibson v. 
Berryhill, 411 U.S. 564, 578-79 (1973) (a person 
"with substantial pecuniary interest in legal 
proceedings should not adjudicate these disputes"); 
a judge may not "give vent to personal spleen or 
respond to a personal grievance" in reaching a 
decision,  Offut v. United States, 348 U.S. 11, 14  
(1954), and a hearing must be "conducted by some 
person other than one initially dealing with the 
case."  Morrissey v. Brewer, 408 U.S. 471, 485-86 
(1972).  In short, impartiality and fairness are 
guaranteed by the Due Process Clause.

Neutrality also means the absence of discrimination.  
As is the case with criminal trials, the Equal 
Protection Clause bars the use of discriminatory 
stereotypes in the selection of the jury in civil 
cases.  As the Supreme Court held in Edmonson v. 
Leesville Concrete Co. Inc., 500 U.S. 614, 628 
(1991): "Race discrimination within the courtroom 
raises serious questions as to the fairness of the 
proceedings conducted there.  Racial bias mars the 
integrity of the judicial system and prevents the 
idea of democratic government from becoming a 

Fairness of civil proceedings also is ensured by the 
requirement that, where they might result in serious 
"hardship" to a party adversary hearings must be 
provided.  For instance, where a dispute between a 
creditor and debtor runs the risk of resulting in 
repossession, the Supreme Court has concluded that 
debtors should be afforded a fair adversarial  
hearing.   See Fuentes v. Shevin, 407 U.S. 67 1972.  
See also Sniadach v. Family Finance Corp., 395 U.S. 
337 (1969).

This is particularly true in civil cases involving 
governmental action, where the Supreme Court, since 
the 1970's and the landmark case of Goldberg v. 
Kelly, supra, has recognized the importance of 
granting procedural rights to individuals.   
Depending on the seriousness of the private 
interests at stake, the U.S. Constitution mandates 
different types of guarantees in civil proceedings 
involving the government: an unbiased tribunal; 
notice to the private party of the proposed action; 
an opportunity to be heard and/or the right to 
present evidence; and the right to know the 
government's evidence, to cross-examine and present 
witnesses, and to receive written findings from the 
decisionmaker.  Applying these principles, the Court 
has thus held that persons have had a right to 
notice of the detrimental action, and a right to be 
heard by the decisionmaker.   Grannis v. Ordean, 234 
U.S. 385, 394  (1918) ("The fundamental requisite of 
due process of law is the opportunity to be heard"); 
Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare 
entitlements cannot be interrupted without a prior 
evidentiary hearing).  When action is taken by a 
government agency, statutory law embodied in the 
Administrative Procedures Act also imposes 
requirements on the government, such as the 
impartiality of the decisionmaker and the party's 
right to judicial review of adverse action.  As 
Justice Frankfurter once wrote, the validity and 
moral authority of a conclusion largely depend on 
the mode by which it was reached . . . No better 
instrument has been devised for arriving at truth 
than to give a person in jeopardy of serious loss 
notice of the case against him and an opportunity to 
meet it.  Nor has a better way been found for 
generating the feeling, so important to popular 
government, that justice has been done.

Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U.S. 123, 171-72 (1951) (Frankfurter, J. 

Although inequalities in wealth distribution 
certainly have an impact on individuals' access to 
the courts and to representation, the equal 
protection components of state and federal 
constitutions have helped smooth these differences.  
In particular, the Supreme Court has held that 
access to judicial proceedings cannot depend on 
one's ability to pay where such proceedings are "the 
only effective means of resolving the dispute at 
hand."  Boddie v. Connecticut, 401 U.S. 371, 375-76 
(1971) (holding unconstitutional a state law 
conditioning a judicial decree of divorce upon the 
claimant's ability to pay court fees and costs).

Inequalities remain, though, in part because neither 
the Constitution nor federal statutes provide a 
right to appointed counsel in civil cases.  
Nonetheless, the Supreme Court has made it easier 
for indigent parties to afford legal representation 
by invalidating prohibitions against concerted legal 
action.  The Court has thus recognized a right for 
groups to "unite to assert their legal rights as 
effectively and economically as practicable."  
United Trans. Union v. State Bar of Michigan, 401 
U.S. 576, 580 (1971).

II.  Presumption of Innocence in Criminal Trials  

In both federal and state prosecutions, the 
presumption of innocence is an essential aspect of 
the constitutional requirement of due process.  

The presumption of innocence means that the 
government bears the burden of proving every element 
of the charged crime beyond a reasonable doubt.  
Sullivan v. Louisiana, 113 S. Ct. 2078, 2080 (1993); 
In re Winship, 397 U.S. 358, 364 (1970).  The 
defendant bears no burden at trial of calling 
witnesses or introducing any tangible evidence, nor 
is the defendant obliged to testify. The U.S. 
Supreme Court has explained that "[t]he principle 
that there is a presumption of innocence in favor of 
the accused is the undoubted law, axiomatic and 
elementary, and its enforcement lies at the 
foundation of the administration of our criminal 
law."  Coffin v. United States, 156 U.S. 432, 453-54 
(1895) (reversing convictions and remanding for a 
new trial where trial judge had refused to instruct 
jury that the defendants were entitled to the 
presumption of innocence).  The Court went on to 
define the presumption of innocence as 

     a conclusion drawn by the law in favor of the 
citizen . . . . an instrument of proof created by 
the law in favor of one accused, whereby his 
innocence is established until sufficient evidence 
is introduced to overcome the proof which the law 
has created.  Id. at 458-59.  

In a subsequent decision, the Court explained that 
the "presumption of innocence is a doctrine that 
allocates the burden of proof in criminal trials. It 
also may serve as an admonishment to the jury to 
judge an accused's guilt or innocence solely on the 
evidence adduced at trial and not on the basis of 
suspicions that may arise from the fact of his 
arrest, indictment, or custody, or from other 
matters not introduced as proof at trial."  Bell v. 
Wolfish, 441 U.S. 520, 534 (1979). 

But, the Court explained, the presumption of 
innocence "has no application to a determination of 
the rights of a pretrial detainee during confinement 
before his trial has even begun."  Id. at 534.  
Thus, the presumption of innocence does not limit 
the right of the government to arrest a person 
charged with a crime, to detain the person pending 
trial, or to govern conditions of pretrial 
detention.  In accordance with this view, the 
Supreme Court has also upheld the constitutionality 
of pretrial detention of indicted persons if no 
conditions of release will reasonably assure his or 
her appearance at trial and the safety of any other 
person and the community.  United States v. Salerno, 
481 U.S. 739 (1987).  The federal statute that 
governs decisions regarding pretrial detention or 
release explicitly provides that "[n]othing...shall 
be construed as modifying or limiting the 
presumption of innocence."  18 U.S.C.    3142(j).  

III.  Rights of the Accused Right to be Informed 
Promptly and in Detail of the Charges.  As discussed 
in the context of Article 9, the Sixth Amendment 
guarantees that criminal defendants have the right 
"to be informed of the nature and cause of the 
accusation."  This guarantee applies in both state 
and federal courts.

The Federal Rules of Criminal Procedure require that 
an arrested person must be taken "without 
unnecessary delay before the nearest available 
federal magistrate."  Fed. R. Crim. P. 5.  If the 
arrest was made without a warrant, a complaint must 
be filed "forthwith" in compliance with the probable 
cause requirement of Fed. R. Crim. P. 4.  The 
purpose of the initial appearance is to inform the 
defendant of the charges and advise the defendant of 
the right to remain silent, right to counsel, the 
right to a preliminary hearing and the fact that any 
statement made by the defendant can be used against 
the defendant.  The magistrate is also required to 
inform the defendant of the "general circumstances 
under which the defendant may secure pretrial 
release."  The initial appearance and procedure for 
pretrial release are discussed under Article 9.   

The Federal Rules do not impose a time frame for 
informing the defendant of the charges.  However, 
the U.S. Supreme Court recently enunciated a rule 
that a probable cause determination must be made 
within 48 hours of a  warrantless arrest.  County of 
Riverside v. McLaughlin, 500 U.S. 44 (1991).  That 
decision clarified a 1975 decision in which the 
Supreme Court held that an individual detained as a 
result of a warrantless arrest is entitled to a 
"prompt" judicial determination of probable cause.  
Gerstein v. Pugh, 420 U.S. 103 (1975).  Gerstein 
permitted States to have flexibility in adopting 
procedures for determining probable cause; in County 
of Riverside, the Court created a presumption that 
delays of more than 48 hours in determining probable 
cause following warrantless arrests are 

The right of the accused to be informed of the 
charges in a language the accused understands is 
also linked to the Fifth Amendment right to due 
process of law.  The use of interpreters in the 
federal court system is discussed in more detail in 
the context of Article 14(3)(f), below.

Right to Prepare Defense and to Communicate With 
Counsel.  Defendants retained in custody acquire 
their Sixth Amendment right to counsel when formal 
adversarial judicial proceedings are initiated 
against them.  Brewer v. Williams, 430 U.S. 387, 398 
(1977).  In contrast, the right to the presence of 
an attorney during custodial interrogation, which is 
grounded on the Fifth and Fourteenth Amendments, 
protects against self-incrimination, and can be 
waived by the defendant.  Edwards v. Arizona, 451 
U.S. 477, 481-82 (1981).  In the defendant's first 
appearance before the magistrate or judge, at the 
point that the defendant is informed of the charges 
and his rights, the magistrate must also allow 
reasonable time for the defendant to consult with 
the defendant's attorney.  Fed. R. Crim. P. 5(c).  
If the defendant is detained pending trial, this 
right of consultation continues for the duration of 
the detention.  In Johnson-El v. Schoemehl, 878 F.2d 
1043, 1051 (8th Cir. 1989), the court stated:  

     [p]re-trial detainees have a substantial due 
process interest in effective communication with 
their counsel and in access to legal materials.  
When this interest is inadequately respected during 
pre- trial confinement, the ultimate fairness of 
their eventual trial can be compromised.

The right to consult with counsel includes the right 
of private consultation.  United States ex rel. 
Darcy v. Handy, 203 F.2d 407 (3d Cir. 1953).  If a 
defendant is in custody the police or prison 
authorities cannot place undue restrictions on 
access to counsel.  See, e.g., Adams v. Carlson, 488 
F.2d 619 (7th Cir. 1973) (prison officials enjoined 
from requiring the use of phones and partitioned 
visiting rooms for attorney-client conferences); 
Lewis v. State, 695 P.2d 528 (Okl. Crim. App. 1984) 
(police must maintain procedures to ensure a person 
in custody can exercise the right to consult with 

Under the Federal Rules of Criminal Procedure, the 
defendant is accorded the time and opportunity to 
begin preparation of a defense almost immediately 
after the arrest.  Federal Rule of Criminal 
Procedure 5 requires the magistrate, at the initial 
appearance of the defendant, to "allow the defendant 
reasonable time and opportunity to consult counsel."  
The right to counsel, as noted elsewhere, attaches 
at the formal initiation of criminal proceedings and 
continues through the appellate stage.

A criminal defendant must sometimes strike a balance 
between the need to have adequate time to prepare a 
defense and the desire for a speedy trial.  The 
Sixth Amendment guarantees a criminal defendant the 
right to a speedy trial.  To help ensure compliance 
in federal courts with this constitutional 
requirement, Congress enacted the Speedy Trial Act 
of 1974, 18 U.S.C.    3161 et seq.  That statute 
imposes specific time limits on the government for 
completion of various stages of the prosecution 
(e.g., filing the indictment or information within 
thirty days of the arrest or service of summons, 
commencement of trial within 70  days of the filing 
of the indictment or date of the initial appearance, 
whichever is later.)  However, Congress has also 
recognized the need to permit a defendant to have 
adequate time to prepare for trial.  Therefore, the 
Speedy Trial Act was amended to prevent the 
government from beginning a trial sooner than 30 
days after the defendant's initial appearance before 
the court, unless the defendant consents to an early 
trial.  18 U.S.C.   3161(c)(2).

The Sixth Amendment also guarantees a defendant the 
right to counsel.  This right has been interpreted 
to embrace the right to counsel of the defendant's 
own choice.  For an indigent defendant, the right 
requires that the court appoint competent counsel if 
the defendant cannot afford to retain an attorney.  
Gideon v. Wainwright, 372 U.S. 335 (1963).  However, 
while the right to counsel is absolute, the right to 
counsel of choice is a qualified one, to be balanced 
against state interests in judicial efficiency and 
in the integrity of the process.  Morris v. Slappy, 
461 U.S. 1 (1982).  For example, the court has the 
discretion to disqualify a defendant's chosen lawyer 
for actual or even potential conflict of interest.  
Wheat v. United States, 486 U.S. 153 (1988).  
Additionally, the court can balance the need for 
expeditious proceedings against the request of a 
defendant to discharge the attorney and substitute a 
new one, where the choice of counsel will result in 
delay of the trial.  United States v. Richardson, 
894 F.2d 492 (1st Cir. 1990).

U.S. Understanding.  In its instrument of 
ratification, the United States noted its 
understanding with respect to the right to counsel 
as follows:

     "[S]ubparagraphs 3(b) and (d) of Article 14 do 
not require the provision of a criminal defendant's 
counsel of choice when the defendant is provided 
with court-appointed counsel on grounds of 
indigence, when the defendant is financially able to 
retain alternative counsel, or when imprisonment is 
not imposed.

Right to Trial Without Undue Delay.  The Sixth 
Amendment guarantees that "[in] all criminal 
prosecutions, the accused shall enjoy the right to a 
[speedy and public trial] . . . ."  The speedy trial 
protection applies to state as well as federal 
prosecutions.  In re Oliver, 333 U.S. 257 (1948).  
In federal courts, the right is implemented by the 
Speedy Trial Act, 18 U.S.C.    3161 et seq., 
discussed below.   

The right to a speedy trial under the Sixth 
Amendment is triggered by the filing of formal 
charges.  Delay occurring before charges are filed 
is not a Sixth Amendment issue; the statutes of 
limitation, which begin to run from the time the 
offense is committed, serve as the primary 
protection against undue pre- indictment delay.  But 
there may be undue delay even when the charges are 
brought within the appropriate statute of 
limitations.  When that occurs, the Due Process 
Clause of the Fifth Amendment (the protections of 
which also apply to persons charged in state courts 
by virtue of the Fourteenth Amendment) may protect 
the accused.  To prevail on a constitutional claim 
of pre-indictment delay, the accused must show that 
the delay resulted in actual and substantial 
prejudice and was improperly motivated in order to 
disadvantage the accused.

The Sixth Amendment, which protects a defendant's 
right to a speedy trial after arrest or indictment, 
is designed to minimize pre-trial incarceration or 
impairment of liberty pending trial and the 
disruption of life while criminal charges are 
outstanding; it also is designed to limit the 
possibility that the defense will be impaired by the 
passage of time.  If the delay constitutes an 
impairment of the defendant's constitutional speedy 
trial right, the court will dismiss the criminal 
charges with prejudice -- thereby barring the 
government from reinstituting the same charges in a 
new indictment.

Where an accused raises a claim of post-indictment 
delay under the Sixth Amendment, the courts apply a 
four-part test originally fashioned by the Supreme 
Court in Barker v. Wingo, 407 U.S. 514 (1972).  The 
factors include the length of the delay, the reason 
for the delay, the defendant's assertion of his 
right to a speedy trial, and prejudice that the 
defendant may have suffered on account of the delay.  

The first factor, length of delay, is the 
"triggering mechanism."  Unless the court finds the 
delay excessive on its face, it will not examine the 
remaining factors.  The second factor is the reason 
for the delay.  Where the government acts 
deliberately and causes the delay, the factor is 
weighted more heavily against it; where the reasons 
for the delay are neutral, they are not weighted 
heavily against the government; and where the delay 
is occasioned by the defendant, that factor is 
weighted against the defendant.  Courts will also 
consider whether the defendant has asserted the 
right to a speedy trial; where the defendant has not 
done so, the failure to assert the right will make 
it difficult for the defendant to later argue that 
he was denied a speedy trial.  The final factor is 
prejudice to the defendant.  When determining 
prejudice the courts consider whether the defendant 
has been in custody or suffered restrictions on 
liberty pending trial, whether the defendant faced 
anxiety and public opprobrium while the criminal 
charges are pending, and whether the delay has 
impaired the defendant's ability to defend himself.  

The Federal Speedy Trial Act.  The right to a speedy 
trial is implemented in federal courts by the Speedy 
Trial Act, 18 U.S.C.    3161 et seq., and by the 
requirement that the federal district courts 
implement local plans for the speedy disposition of 
criminal cases.  

The Speedy Trial Act first requires that a person 
arrested on a complaint, who under the Sixth 
Amendment has a right to be charged by indictment 
returned by a grand jury, must be indicted within 30 
days of arrest; that period may be extended for 
another 30 days if the grand jury has not met within 
the first 30 days.  18 U.S.C.   3161(b).  If the 
detainee has not been indicted within that time, the 
government must dismiss the charges and release the 

After the indictment has been returned, the 
defendant must be tried within 70 days of the return 
of the indictment or the defendant's first 
appearance before a magistrate, whichever occurs 
last.  18 U.S.C.   3161(c)(1).  Certain intervals 
are excludable from computation of the 70 day to-
trial period, including delays resulting from 
proceedings to determine competency or while the 
defendant is incompetent or physically unable to 
stand trial, to resolve other criminal charges, to 
hear pretrial motions, to transfer the case to 
another district, to consider the possibility of a 
plea agreement, and while the parties attempt to 
locate another defendant or witness or evidence.  
The court may also continue the trial if it finds 
that the ends of justice are best served by the 
delay and if it makes a specific explanation on the 
written record.  18 U.S.C.   3161(h).  

If the 70-day-to-trial period has expired, the court 
may dismiss the indictment with or without 
prejudice.  18 U.S.C.   3162.  Dismissal with 
prejudice means that charges cannot be refiled.  The 
Speedy Trial Act provides that the court should 
consider, among other factors, the seriousness of 
the offense, the facts and circumstances that led to 
the dismissal, and the impact of reprosecution on 
the administration of the statute and the 
administration of justice.  If either the prosecutor 
or the defense counsel acts deliberately to violate 
the defendant's rights under the Speedy Trial Act 
the court may also impose personal sanctions on the 

State Constitutions and Statutes.  As noted 
previously, states may impose limitations and follow 
procedures that are more, but not less, protective 
of individual rights than required by the U.S. 
Constitution.  Many states have enacted speedy trial 
acts similar to the federal statute.   States differ 
on whether speedy trial rights apply to juveniles.  
Florida includes a speedy trial provision in its 
Rules of Juvenile Procedure.  Fla. R. Juv. P. 8.090 
(as amended in 1991 and 1992); State v. Perez, 400 
So.2d 91 (Fla. Ct. App. 1981).  Other states may 
consider delinquency proceedings as civil matters to 
which speedy trial acts are not applicable.  See 
Robinson v. State, 707 S.W.2d 47 (Tex. Ct. Crim. 
App. 1986); Matter of Beddingfield, 257 S.E.2d 643 
(N.C. Ct. App. 1979).

Right to be Tried in Own Presence and to Defend in 
Person.  The "constitutional right to presence" at 
trial is rooted in the Confrontation Clause of the 
Sixth Amendment and the Due Process Clause of the 
Fifth Amendment.  United States v. Gagnon, 470 U.S. 
522, 526 (1985) (per curiam).  The Confrontation 
Clause has been held to be applicable to the states 
through operation of the Fourteenth Amendment.  
Pointer v. Texas, 380 U.S. 400 (1965).  In another 
case involving a state prosecution, the U.S. Supreme 
Court declared that "the defendant has the privilege 
under the Fourteenth Amendment to be present in his 
own person whenever his presence has a relation, 
reasonably substantial, to the fullness of his 
opportunity to defend against the charge."  Snyder 
v. Massachusetts, 291 U.S. 97, 105-6 (1934).

Federal law requires that noncorporate defendants be 
present at every major stage in a prosecution, 
including arraignment, entry of plea, all stages of 
trial and sentencing.  Exceptions apply in cases in 
which the defendant has voluntarily absented himself 
or herself after the trial has commenced, or has 
been removed by the court for disruptive behavior 
after warnings, as well as in cases involving 
offenses punishable by fine or imprisonment for not 
more than one year, if the defendant has consented 
in writing to trial in absentia.  Corporate 
defendants may appear by counsel in any case.  Fed. 
R. Crim. P. 43.  In a state proceeding, the 
defendant's absence from a court hearing is not 
always a violation of the Due Process or 
Confrontation Clauses, although he has a guaranteed 
right to be present at critical stages, but depends 
on whether "his presence would contribute to the 
fairness of the procedure."  Kentucky v. Stincer, 
482 U.S. 730, 745 (1987) (no violation when Kentucky 
defendant was excluded from hearing on competency of 
a child witness to testify); McMillian v. State, 594 
So.2d 1253, 1270 (Ala. Cr. App. 1991) (no violation 
where defendant's lawyer argued motion for mistrial 
during trial intermission after state judge had 
inquired whether lawyer wanted client present).

When a defendant flees during the trial the 
proceedings may continue to verdict even in the 
defendant's absence, though the defendant cannot be 
sentenced in absentia.  Bartone v. United States, 
375 U.S. 52 (1963).  However, in Crosby v. United 
States, 113 S. Ct. 748 (1993), the Supreme Court 
held that Fed. R. Crim. P. 43 prohibits the trial in 
absentia of a defendant who is not present at the 
start of trial.  The Court found a rational 
distinction between flight before and during trial, 
for the purpose of deciding whether to permit the 
trial to proceed in the defendant's absence.  The 
defendant's presence at the commencement of trial 
bolsters a later finding that the costs of delaying 
the trial would be unjustified; it also helps to 
ensure that the defendant's waiver is knowing and 
voluntary and deprives the defendant of the option 
of terminating a trial that does not appear to be 
going in his or her favor.

Right to Legal Assistance of Own Choosing.  The 
right to counsel in all federal criminal 
prosecutions is provided for by the Sixth Amendment.  
This right has been extended to state courts through 
operation of the Due Process Clause of the 
Fourteenth Amendment.  In the landmark case of 
Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. 
Supreme Court mandated that every indigent person 
accused of a felony in a state court must be 
provided with counsel.  In Argersinger v. Hamlin, 
407 U.S. 25 (1972), the Supreme Court extended this 
rule to provide for the appointment of counsel to 
indigent persons charged with any offense, including 
misdemeanors, which could result in incarceration.  

For purposes of the Sixth Amendment, this right 
attaches from the time of the initial appearance 
before the court.  Fed. R. Crim. P. 44(a) reads as 

     Right to assigned counsel.  Every defendant who 
is unable to obtain counsel shall be entitled to 
have counsel assigned to represent that defendant at 
every stage of the proceedings from initial 
appearance before the federal magistrate or the 
court through appeal, unless that defendant waives 
such appointment.  

Rule 44 comports with a series of Supreme Court 
decisions regarding the right to appointed counsel 
at critical stages of a prosecution.  White v. 
Maryland, 373 U.S. 59 (1967) (preliminary hearing at 
which a guilty plea had been entered before a 
magistrate); Hamilton v. Alabama, 368 U.S. 52 (1961) 
(arraignment at which certain defenses were deemed 
waived if not pleaded);  Coleman v. Alabama, 399 
U.S. 1 (1970) (preliminary hearing to determine if 
sufficient evidence exists to present case to grand 
jury and if so to fix bail);  United States v. Wade, 
388 U.S. 218 (1967) (post-indictment line-up); Mempa 
v. Rhay, 389 U.S. 128 (1967) (sentencing hearing).

Courts have also held that the Sixth Amendment 
guarantee of the assistance of counsel also protects 
the defendant's right to represent himself or 
herself without the assistance of counsel if the 
defendant so chooses.  Faretta v. California, 422 
U.S. 806 (1975).  That right is qualified, however, 
by requirements that it be asserted in a timely 
fashion and that the defendant abide by procedural 
rules and requirements of courtroom protocol.  The 
court must also ensure that a defendant's waiver of 
the right to the assistance of counsel is knowing 
and intelligent.  Moreover, the court may appoint 
standby counsel over the objection of the defendant.  
McKaskle v. Wiggins, 465 U.S. 168 (1984).

As discussed under Article 9, even before the 
commencement of judicial proceedings, an accused 
person has a right to counsel under the Fifth 
Amendment, if he or she is subjected to custodial 
interrogation.  Miranda v. Arizona, 384 U.S. 436 
(1966).  Police must inform a suspect, prior to 
questioning, that the person has a right to remain 
silent, that any statements made by the suspect can 
be used against the suspect in court, that the 
suspect has the right to have an attorney present, 
and that an attorney will be appointed for the 
suspect if the suspect cannot afford to retain one.  
Rule 5 of the Federal Rules of Criminal Procedure 
requires a magistrate to inform a defendant of these 
rights during the initial appearance of the accused 
in court.

Right of Confrontation.  The Sixth Amendment 
provides, in part, that "[i]n all criminal 
prosecutions, the accused shall enjoy the right . . 
. to be confronted with witnesses against him, and 
to have compulsory process for obtaining witnesses 
in his favor."  These rights extend to state 
prosecutions through the due process clause of the 
Fourteenth Amendment.

The Confrontation Clause guarantees a defendant the 
right to be present at any stage at which the 
defendant's presence would contribute to the 
defendant's opportunity for effective cross-
examination, and at any stage of a criminal 
proceeding that is "critical to its outcome if his 
presence would contribute to the fairness of the 
procedure."  Kentucky v. Stincer, 482 U.S. 730 
(1987).  The defendant may waive this right to be 
present by voluntarily failing to appear in the 
courtroom, Taylor v. United States, 414 U.S. 17, 19-
20 (1973), or by continued disruption of the 
proceeding after warnings from the court, Illinois 
v. Allen, 397 U.S. 337, 342 (1970).

Although face-to-face confrontation of adverse 
witnesses at trial by the defendant is protected by 
the Confrontation Clause, this is not an absolute 
right.  Maryland v. Craig, 497 U.S. 836, 844 (1990) 
(upholding child witness' testimony by one-way 
closed circuit television).  The Clause chiefly is 
concerned with ensuring reliable testimony.  
Therefore the meeting requirement can be waived with 
a proper showing of necessity, where the furtherance 
of an important public policy is at stake and the 
witness in question testifies under oath, subject to 
full cross-examination, and can be observed by 
judge, jury, and the defendant.  Id. at 850, 857.  A 
criminal defendant may waive the right to a face- 
to-face confrontation by preventing a witness from 
testifying, United States v. Potamitis, 739 F.2d 
784, 788-89 (2d Cir. 1984), or by failing to make a 
timely objection to the violation, United States v. 
Gagnon, 470 U.S. 522, 527 (1985) (per curiam).

The Confrontation Clause also guarantees criminal 
defendants the "opportunity for effective cross-
examination," but does not require that the 
defendant cross-examine witnesses.  Delaware v. 
Fensterer, 474 U.S. 15, 20 (1985) (emphasis in 
original).  In cross-examination, the defendant has 
the right to test the witness' credibility and 
knowledge of the facts relevant to the case.  If a 
witness invokes the Fifth Amendment privilege 
against self-incrimination and remains silent, and 
this invocation of the witness' right prevents the 
defense from inquiring into relevant issues, the 
court may strike the witness' direct testimony.  The 
court may also limit cross-examination if questions 
are prejudicial, irrelevant, cumulative, collateral, 
unsupported by facts, confusing, or if they may 
jeopardize an ongoing government investigation.  See 
United States v. Balliviero, 708 F.2d 934, 943 (5th 
Cir. 1983) (confrontation clause not violated when 
court prohibited use of transcript of witness' 
sentence reduction hearing because use would 
jeopardize ongoing government investigation), cert. 
denied, 464 U.S. 939 (1983); United States v. Hirst, 
668 F.2d 1180, 1184 (11th Cir. 1982) (Confrontation 
Clause not violated when court limited inquiry into 
confidential informant's criminal activities because 
further responses would impair government 

The admission into evidence of hearsay statements 
(statements made by an out-of-court declarant, 
recounted at trial by another, and offered for the 
truth of the matter asserted) against a defendant 
implicates the defendant's confrontational right, 
because the defendant cannot confront the out-of-
court declarant.  However, if the prosecution can 
establish that the declarant is unavailable at trial 
and that the statement introduced is sufficiently 
reliable, these out-of-court statements may be 
admitted.  To establish that a declarant is 
unavailable, the government must show that it is 
unable to bring the declarant to trial despite good-
faith efforts to do so.  Reliability may be 
established if the statement falls within an 
established exception to the hearsay rule, or if the 
prosecution shows that the statement has a 
particularized guarantee of trustworthiness.

The Compulsory Process Clause of the Sixth Amendment 
guarantees a defendant the right to obtain the 
attendance of witnesses on the defendant's behalf.   
To exercise this right, the defendant must show that 
the witness' testimony would be material, favorable 
to the defense, and not merely cumulative.  See 
United States v. Valenzuela-Bernal, 458 U.S. 858, 
867, 873 (1982).  Furthermore, a defendant may not 
be able to compel testimony from a witness who 
chooses to invoke the Fifth Amendment privilege 
against self-incrimination.  In its instrument of 
ratification, the United States noted its 
understanding that paragraph 3(e) of Article 14 
"does not prohibit a requirement that the defendant 
make a showing that any witness whose attendance he 
seeks to compel is necessary for his defense."

In applying criminal procedural rules, a state may 
not limit arbitrarily a defendant's ability to 
secure the testimony of favorable witnesses.  
Washington v. Texas, 388 U.S. 14 (1967) (Texas law 
permitting a codefendant to testify as a prosecution 
witness, but not in favor of defendant, violated 
right to have compulsory process for obtaining 
witnesses in defendant's favor).  A state cannot 
rigidly apply otherwise valid rules if the 
defendant's right to compulsory process or basic 
notions of due process are abridged.  For example, 
in Chambers v. Mississippi, 410 U.S. 284 (1973), the 
Supreme Court held that applying state rules 
limiting cross-examination of a party's own witness 
and excluding hearsay statements actually denied the 
defendant a fair trial.

The Compulsory Process Clause also prohibits 
government prosecutors from intimidating or 
threatening potential defense witnesses to 
discourage them from testifying for the defendant.  
It is not clear whether prosecutors have the duty to 
take affirmative steps to secure the testimony of 
potential defense witnesses.  See Pennsylvania v. 
Ritchie, 480 U.S. 39 (1987).

The Compulsory Process Clause, however, does not 
guarantee that the defendant obtain the attendance 
of witnesses under precisely the same conditions as 
adverse witnesses.  In general, a criminal defendant 
has no absolute right to have witnesses brought into 
court at public expense.  The Compulsory Process 
Clause does not give witnesses a right to claim fees 
from the government, unless required by statutes.  
Under the federal rules, the defendant may ask the 
court to issue a subpoena to compel the attendance 
of a witness at federal expense only after 
establishing that (1) the defendant is financially 
unable to pay the fees of the witness and (2) that 
the presence of the witness is necessary to an 
adequate defense.  If the court issues the subpoena, 
the rule requires that the cost and witness fees "be 
paid in the same manner in which similar costs and 
fees are paid in case of a witness subpoenaed in 
behalf of the government."  Fed. R. Crim. P. 17(b).  
Each state may have different procedural regulations 
regarding the payment of subpoena costs and witness 
fees.  Once in court, however, the same procedural 
and evidentiary rules apply to witnesses for all 

Assistance of an Interpreter.  The right of a 
criminal defendant to be assisted by an interpreter 
if the defendant cannot understand or speak the 
language used in court is implicit in both the Due 
Process Clause of the Fifth Amendment and the 
Confrontation Clause of the Sixth Amendment.  This 
right is accorded in federal and state practice.

In United States Ex. Rel. Negron v. State of New 
York, 434 F.2d 386, 389 (2d Cir. 1970), the Second 
Circuit held that without the benefit of an 
interpreter, the trial of a defendant who spoke no 
English "lacked the basic and fundamental fairness 
required by the due process clause of the Fourteenth 
Amendment."  In addition, the inability to 
understand the language at trial impairs the 
defendant's right to confront witnesses against him; 
like the due process protections of the Fifth 
Amendment, the criminal defendant's Sixth Amendment 
right to confrontation is applicable to state 
prosecutions through the Fourteenth Amendment as 
well.  Pointer v. Texas, 380 U.S. 400 (1965).

Rule 28 of the Federal Rules of Criminal Procedure 

     The court may appoint an interpreter of its own 
selection and may fix the reasonable compensation of 
such interpreter.  Such compensation shall be paid 
out of funds provided by law or by the government, 
as the court may direct.

The notes of the Advisory Committee on Rules explain 
that Rule 28 uses

     [g]eneral language . . . to give discretion to 
the court to appoint interpreters in all appropriate 
situations.  Interpreters may be needed to interpret 
the testimony of non-English speaking witnesses or 
to assist non-English speaking defendants in 
understanding the proceedings or in communicating 
with assigned counsel.

Rule 43(f) of the Federal Rules of Civil Procedure 
is the civil counterpart to Rule 28.  It governs the 
use of interpreters for taking testimony in civil 
cases.  In addition, the Court Interpreters Act, 28 
U.S.C.   1827, requires the administrative arm of 
the federal court system to establish and maintain a 
program for the provision of certified court 
interpreters in criminal proceedings and in civil 
actions initiated by the United States.  28 U.S.C.   
1827(d) provides that the "presiding judicial 
officer" (i.e., U.S. district court judge, U.S. 
magistrate, or bankruptcy referee) shall, either sua 
sponte or on motion of a party (including a criminal 
defendant), order the use of an interpreter if the 
defendant or a witness "speaks only or primarily a 
language other than the English language . . . ."  
Although the court has discretion in deciding 
whether to use an interpreter, 28 U.S.C.   
1827(e)(2) ensures that

     In any criminal or civil action in a United 
States district court, if the presiding judicial 
officer does not appoint an interpreter under 
subsection (d) of this section, an individual 
requiring the services of an interpreter may seek 
assistance of the clerk of the court or the Director 
of the Administrative Office of the United States 
Courts in obtaining the assistance of a certified 

Other federal statutes authorize the use and payment 
of interpreters in depositions to authenticate 
foreign public documents in criminal cases.  18 
U.S.C.    3493, 3495, 3496.  Interpreters are 
subject to the same procedural rules regarding 
qualifications as are other expert witnesses.  Fed. 
R. Crim. P. 604.

Most states recognize that non-English-speaking 
criminal defendants have a right to an interpreter.  
Two states provide for such interpreters in their 
state constitutions: California and New Mexico.  
Cal. Const. art. 1,   14; N.M. Const. art. 2,   14.  
Otherwise, the right is found in regulations or 
statutes.  V.A.M.S.   476.060 (Missouri); Ohio Rev. 
Code Ann.   2311.14 (civil cases); Ohio Rev. Code 
Ann.   2335.09 (criminal cases).

Protection Against Self-Incrimination.  The Fifth 
Amendment provides that "No person shall be . . . 
compelled in any criminal case to be a witness 
against himself."  This constitutional protection of 
the individual's right against self- incrimination 
in criminal cases is applicable to the states as 
well as the federal government. 

The Fifth Amendment thus prohibits the use of 
involuntary statements.  It not only bars the 
government from calling the defendant as a witness 
at his trial, but also from taking statements from 
the accused against the accused's will.  If a 
defendant confesses, he may seek to exclude the 
confession from trial by alleging that it was 
involuntary.  The court will conduct a factual 
inquiry into the circumstances surrounding the 
confession to determine if the law enforcement 
officers acted in a way to pressure or coerce the 
defendant into confessing and, if so, whether the 
defendant lacked a capacity to resist the pressure.  
Colorado v. Connelly, 479 U.S. 157 (1986).  Physical 
coercion will render a confession involuntary.  
Brown v. Mississippi, 297 U.S. 278 (1936).  

An individual's right against compelled self-
incrimination applies regardless of whether charges 
have been formally filed.  To ensure that the 
individual has knowingly waived Fifth Amendment 
rights when he gives a statement during questioning 
by government agents, the investigating officer 
conducting a custodial interrogation is obligated to 
inform the suspect that the suspect has a right to 
remain silent, that anything he says can be used 
against him, and that the suspect has a right to 
speak with an attorney before answering questions.  
Miranda v. Arizona, 384 U.S. 436 (1966).  If the 
questioner does not follow this procedural step, 
evidence obtained through the interrogation cannot 
be used at the defendant's criminal trial.  If the 
defendant is given the proper warnings and waives 
these rights, any statement and information derived 
as a result of that statement may be used as 
evidence at a subsequent criminal trial.

Thus, the Fifth Amendment guarantees that persons 
have the right to refuse to testify as to matters 
which would incriminate them.  There are times, 
however, when the government deems a person's 
testimony, even though it would be self- 
incriminating, to be essential.  The federal 
immunity statute, 18 U.S.C.    6001 et seq., 
addresses the accommodation between the right of 
government to compel testimony, whether before a 
grand jury or at trial, and the individual's right 
to remain silent.  In re Special Grand Jury, 480 F. 
Supp. 174, 177-78 (E.D.Wis. 1979).  A witness is 
entitled to immunity from criminal prosecution if 
compelled to testify despite the constitutional 
privilege.  Gardner v. Broderick, 392 U.S. 273, 279 
(1968).  When immunity has been ordered, the federal 
immunity statute, 18 U.S.C.   6002, explains the 
reach of that immunity for testimony compelled in 
federal proceedings:  "no testimony or other 
information compelled under the order (or any 
information directly or indirectly derived from such 
testimony or other information) may be used against 
the witness in any criminal case, except a 
prosecution for perjury, giving a false statement, 
or otherwise failing to comply with the order" 
(emphasis added).  The immunity protects witnesses 
from the use of their compelled testimony in any 
later prosecution, regardless whether it is a state 
or federal prosecution.  Murphy v. Waterfront 
Comm'n, 378 U.S. 52 (1964).  

Under 18 U.S.C.   6003, the U.S. Attorney (chief 
federal prosecutor) for a federal district, with the 
approval of the Attorney General or other 
statutorily specified Department of Justice 
official, has the discretion to request and obtain a 
court order requiring "any individual who has been 
or may be called to testify or provide other 
information at any proceeding before or ancillary to 
a court of the United States or a grand jury of the 
United States . . . to give testimony or provide 
other information which he refuses to give or 
provide on the basis of his privilege against self-
incrimination" if, in the U.S. Attorney's judgment, 
"(1) the testimony or other information . . . may be 
necessary to the public interest; and (2) such 
individual has refused or is likely to refuse to 
testify or provide other information on the basis of 
his privilege against self-incrimination."  18 
U.S.C.   6003(b).  Section 6004 authorizes 
compulsion and immunity orders in certain 
administrative proceedings, when approved by the 
Department of Justice.  Section 6005 provides for 
court- ordered immunity for witnesses called to 
testify in a Congressional hearing; that provision 
does not require prior Department of Justice 
approval but it does require that Congress give 10 
days notice to the Justice Department in advance of 
its conferral of immunity.  

The government is not obligated to grant immunity.  
United States v. Lang, 589 F.2d 92, 123 (2d Cir. 
1978).  If the government refuses to grant immunity, 
however, a defendant may exercise his usual rights 
under the Fifth Amendment.  United States v. Karas, 
624 F.2d 500, 505 (4th Cir. 1980), cert. denied, 449 
U.S. 1078 (1981).  In sum, testimony compelled from 
a witness under a grant of immunity must leave the 
witness and the government in substantially the same 
positions as if the witness had exercised the right 
to remain silent.  United States v. North, 910 F.2d 
843 (D.C. Cir. 1990); United States v. Semkiw, 712 
F.2d 891, 894 (3d Cir. 1983).  The government will 
be precluded from using a witness's compelled 
testimony against the witness, but may prosecute 
that witness for offenses that this evidence 
concerned if the government can prove that it 
obtained sufficient evidence from a legitimate 
source wholly independent of the compelled 
testimony.  Kastigar v. United States, 406 U.S. 441, 
460 (1972).        State statutes similarly govern 
grants of immunity by the respective states.  Some 
restrict the types of cases in which immunity may be 
offered.  For example, Connecticut provides for 
immunity only in grand jury investigations or trials 
of specified, serious offenses.  Conn. Gen. Stat.   
54-47a (1989).  However, just as under federal law, 
the scope of the constitutional privilege and scope 
of state-granted immunity are co-extensive:  

     No witness may be prosecuted or subjected to 
any penalty or forfeiture for or on account of any 
transaction, matter or thing concerning which he is 
compelled to testify or produce evidence, and no 
testimony or evidence so compelled, and no evidence 
discovered as a result of or otherwise derived from 
testimony or evidence so compelled, may be used as 
evidence against him in any proceeding, except that 
no witness shall be immune from prosecution for 
perjury or contempt committed while giving such 
testimony or producing such evidence. 

Conn. Gen. Stat.   54-47a(b).  

Other states, however, grant full transactional 
immunity for compelled testimony.  "Transactional 
immunity" forbids prosecution of the witness for the 
offense to which the compelled testimony is related.  
Since United States citizens are protected both by 
the United States Constitution and their own states' 
constitutions -- which may provide protections 
broader, but not narrower, than the U.S. 
Constitution -- states may expand on the protections 
required by the Constitution and federal law.  
Transactional immunity granted by a state does not 
prevent federal prosecution for the same 
transaction; the defendant's protection is limited 
to use immunity.  United States v. Anzalone, 555 
F.2d 317, 320-321 (2d Cir. 1977), cert. denied, 434 
U.S. 1015 (1978).  "Use immunity" forbids compelled 
testimony and its fruits from being used against the 
witness in any way related to the criminal 
prosecution of the witness.  However, the trend in 
the states is also to cut back from full 
transactional immunity to use and derivative use 
immunity.          Finally, there are instances, 
such as post-immunity prosecutions for perjury, 
where, notwithstanding the grant of use immunity, 
the testimony itself or its substance may be 
introduced against the individual.

IV.  Review of Conviction and Sentence.

All criminal conviction and sentences in the U.S. 
criminal justice system are subject to review.  
Direct appeal is the primary avenue for review of a 
conviction or sentence in a criminal case.  The 
normal review, whether called an appeal or a 
proceeding in error, is confined to consideration of 
the record below, with no new testimony taken or new 
issues raised in the appellate court. 

The right to direct appeal of a conviction in a 
criminal case has not been regarded under the law as 
a due process protection or otherwise guaranteed by 
the U.S. Constitution.  McKane v. Durston, 153 U.S. 
684, 687-88 (1894).  However, under federal law 
criminal defendants have a statutory right to appeal 
their convictions or sentences to the intermediate 
court of appeals.  See 28 U.S.C.   1291 (statutory 
right to appeal from final judgments, including 
criminal judgments of conviction and sentences, in 
federal district court); 18 U.S.C.    3742 
(providing a statutory right to defendants to appeal 
their sentences).  If unsuccessful on appeal, they 
have a right to seek review (petition for a writ of 
certiorari) by the U.S. Supreme Court.  However, 
unlike the absolute obligation of appellate courts 
to accept the appeals brought from district court, 
the Supreme Court has discretion to decline to hear 
the case.   

Every state also provides, either by state 
constitution (e.g., Florida, State ex rel. Cheney v. 
Rowe, 11 So.2d 585, 152 Fla. 316 (1943); 
Pennsylvania, Commonwealth v. Passaro, 476 A.2d 346, 
504 Pa. 611 (1984); Indiana, Bozovichar v. State, 
103 N.E.2d 680, 230 Ind. 358 (1952); Alabama (Const. 
Art. 1   6; Delaware (Const. Art. I,   7)) or 
statute (Connecticut, State v. Curcio, 463 A.2d 566, 
191 Conn. 27 (1983); Maryland, Cubbage v. State, 498 
A.2d 632, 304 Md. 237 (1985)), or both, that 
criminally convicted defendants have a right to 
appeal their convictions and/or sentences.  State 
prisoners whose appeals throughout the state's 
system have been unsuccessful may also file 
petitions for a writ of certiorari in the Supreme 

Moreover, individuals who allege their convictions 
or punishments are in violation of federal law or 
the Constitution may seek review in federal court by 
way of an application for a writ of habeas corpus.  
Ex parte Bollman, 8 U.S. (4 Cranch) 74, 95 (1807); 
Stone v. Powell, 428 U.S. 465, 474-75 n.6 (1976); 
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).  
State prisoners in custody may seek federal court 
review on the ground that they are in custody in 
violation of the Constitution or laws or treaties of 
the United States.  28 U.S.C.    2241, 2254.  The 
prisoner seeking federal review must first exhaust 
all state appellate remedies.  28 U.S.C.   2254(b), 
(c).  All states, as noted above, guarantee the 
right to appeal a conviction to at least one higher 
court, and a right of discretionary review by (if 
not of direct appeal to) the state's highest court.  
All states provide some form of collateral relief, 
either a writ of habeas corpus or error coram nobis, 
or under specific statutory post-conviction relief 

In such cases, federal courts ordinarily will not 
resolve claims that the prosecution was inconsistent 
with requirements under state laws or procedures 
that are not of constitutional magnitude.  Estelle 
v. McGuire, 112 S.Ct. 475, 479-80 (1991); Pulley v. 
Harris, 465 U.S. 37, 41-2 (1984).  If the prisoner's 
application to a federal district court for habeas 
relief is denied, he has a right to appeal that 
denial to the federal court of appeals; if that is 
denied, he may file a petition for a writ of 
certiorari and thereby ask the Supreme Court to hear 
his case.  

A federal prisoner in custody may also seek habeas 
corpus relief in the same federal court in which the 
conviction was entered on the ground that the 
sentence was imposed in violation of the 
Constitution or laws of the United States, or that 
the court had no jurisdiction to impose the 
sentence, or that the sentence was in excess of the 
maximum authorized by law, or any other ground by 
which the conviction and sentence may be challenged.  
28 U.S.C.   2255.  Ordinarily a petition under 
Section 2255 is not permitted to substitute for a 
direct appeal, but it does provide a substantial 
right to additional review, particularly for issues 
that could not have been raised in the direct appeal 
from the conviction.  

V.  Right to Compensation for Miscarriage of Justice  

As discussed under Article 2, United States law 
provides a variety of mechanisms by which victims of 
illegal arrests or other miscarriages of justice may 
seek to obtain compensation.  For example, federal 
law provides an enforceable right to seek 
compensation against officers or employees of the 
federal government alleged to have committed a 
violation of constitutionally protected rights.  
Bivens v. Six Unknown Named Agents, 403 U.S. 386 
(1971).  Under the Federal Tort Claims Act, civil 
actions for damages arising from negligent or 
malicious conduct may be brought against the federal 
government in certain circumstances. 

However, neither federal nor state law contains an 
absolute guaranteed right to obtain or recover 
compensation in every situation involving a 
miscarriage of justice.  For example, U.S. law does 
not generally accord a right to compensation for an 
arrest or detention made in good faith but 
ultimately determined to have been unlawful. Thus, 
if upon review of a particular case, the U.S. 
Supreme Court were to adopt a new interpretation of 
a constitutional provision, which had the effect of 
retroactively invalidating an arrest which had been 
properly conducted under the rule previously in 
effect, no compensation would typically be owed to 
the subject of the arrest.  Moreover, to the extent 
it has not been waived, the doctrine of sovereign 
immunity generally restricts opportunities for 
recovery of compensation against the government.

U.S. Understanding.  In view of the above, the 
United States included the following in its 
instrument of ratification:

     The United States understands the right to 
compensation referred to in Articles 9(5) and 14(6) 
to require the provision of effective and 
enforceable mechanisms by which a victim of unlawful 
arrest or detention or a miscarriage of justice may 
seek and, where justified, obtain compensation from 
either the responsible individual or the appropriate 
governmental entity.  Entitlement to compensation 
may be subject to the reasonable requirements of 
domestic law.

VI.  Double Jeopardy

The Fifth Amendment to the U.S. Constitution 
provides, among other protections: "nor shall any 
person be subject for the same offense to be twice 
put in jeopardy of life or limb."  The Double 
Jeopardy Clause thus protects against reprosecution 
by the federal government for the same offense after 
a previous conviction or acquittal.  It also 
protects against the imposition of multiple 
punishments for the same criminal act.  See United 
States v. Halper, 490 U.S. 435 (1990).  Because the 
Double Jeopardy Clause of the Fifth Amendment 
applies to the states (Benton v. Maryland, 395 U.S. 
784, 793-96 (1969)), a state may not prosecute 
persons more than once for the same crime.  

The Double Jeopardy Clause has been interpreted to 
bar successive prosecutions for greater- as well as 
lesser-included offenses, Illinois v. Vitale, 447 
U.S. 410, 421 (1980); United States v. Dixon, 113 S. 
Ct. 2849, 2861- 62 (1993); Brown v. Ohio, 432 U.S. 
161 (1977), and "when an issue of ultimate fact has 
once been determined by a valid and final judgment."  
When an issue of fact has been determined with 
finality in a prior trial, "that issue cannot again 
be litigated between the same parties in any future 
lawsuit."  Ashe v. Swenson, 397 U.S. 436, 443 

The Double Jeopardy Clause does not erect an 
absolute bar to successive prosecutions, however.  
For example, if circumstances occurring during the 
first trial require its termination for reasons 
unrelated to the sufficiency of the evidence and 
before a verdict has been issued, the Double 
Jeopardy Clause will not protect against bringing 
the defendant again to trial.  Richardson v. United 
States, 468 U.S. 317 (1984).  Similarly, if the 
defendant appeals his conviction and prevails on 
appeal on an issue other than a claim that the 
evidence was insufficient, the Double Jeopardy 
Clause does not bar the state from reprosecuting the 
defendant.  Burks v. United States, 437 U.S. 1 

Additionally, because of the complexity of modern 
criminal laws, defendants may face more than one 
criminal charge arising from the same acts or series 
of acts.  In an effort to simplify the analysis 
where there are either multiple punishments or  
multiple prosecutions, the Supreme Court has 
recently returned to a "same-elements" test:  
"whether each offense contains an element not 
contained in the other; if not, they are the `same 
offense' and double jeopardy bars additional 
punishment and successive prosecution."  United 
States v. Dixon, 113 S. Ct. 2849, 2856 (1993), 
citing Blockburger v. United States, 284 U.S. 299, 
304 (1932).  Thus, where a person is charged with 
two different crimes, the doctrine of double 
jeopardy will not bar either sequential trials on 
the two charges or cumulative sentences as long as 
each count requires the government to prove a 
factual element that is not required in the other 
count.  Nor will the Double Jeopardy Clause bar 
separate and multiple prosecutions for the same 
crime by different sovereignties.  Because federal 
and state jurisdiction is separate, the Supreme 
Court has interpreted the Double Jeopardy Clause not 
to bar prosecutions by both the federal government 
and a state government, or by multiple state 
governments, for the same offense.  See Heath v. 
Alabama, 474 U.S. 82 (1985); Abbate v. United 
States, 359 U.S. 187 (1959).  

Protections for Defendants.  Notwithstanding that 
the U.S. Supreme Court has held that the Fifth 
Amendment does not bar those multiple prosecutions, 
the federal government imposes certain procedures to 
protect defendants in federal criminal cases.  The 
U.S. Department of Justice's long-standing policy 
provides that "several offenses arising out of a 
single transaction should be alleged and tried 
together and should not be made the basis of 
multiple prosecutions."  Petite v. United States, 
361 U.S. 529, 530 (1960) (per curiam).  

The government's Petite policy is set out in the 
United States Attorney's Manual 9-2.142 (1988).  
Briefly, the policy states the presumption against 
prosecuting a defendant federally after he has been 
prosecuted either by state or federal authorities 
for "substantially the same act, acts or transaction 
unless there is a compelling federal interest 
supporting the dual or successive federal 
prosecution."  In order to protect against 
overreaching prosecutions, the Assistant Attorney 
General of the Criminal Division must approve the 
initiation or continuation of the successive federal 
prosecution.  The statement of policy spells out 
factors to be taken into account in making the 
Petite decision.  First, "[a] federal prosecution 
will not be authorized unless the state/prior 
federal proceeding left substantial federal 
interests demonstrably unvindicated."  Even then, 
the statement continues, the prosecution "normally 
will not be authorized unless an enhanced sentence 
in the subsequent federal prosecution is 
anticipated."  Other factors include:  if the prior 
proceedings were "infect[ed] . . . by incompetence, 
corruption, intimidation, or undue influence," or if 
the verdict represented "court or jury nullification 
involving an important federal interests, in blatant 
disregard of the evidence."  

Many states have imposed more rigorous double 
jeopardy prohibitions against multiple prosecutions 
by different legal jurisdictions, either in statutes 
or their state constitutions.  For example, New York 
State protects persons from reprosecution in state 
court for conduct that previously formed the basis 
for a federal prosecution.  New York State's purpose 
in enacting its double jeopardy statute was 
"primarily to supersede the 'dual sovereignties' 
doctrine which permitted successive state and 
federal prosecutions based on the same transaction 
or conduct."  People v. Rivera, 456 N.E.2d 492, 495 
(N.Y. 1983).   

U.S. Understanding.  As a result of these protective 
procedures and policies, multiple prosecutions occur 
only rarely.  However, because it is permissible in 
certain narrowly defined situations and has on 
occasion proven an effective method for ensuring 
that those who violate others' basic rights are 
brought to justice, the United States included the 
following understanding in its instrument of 

     The United States understands the prohibition 
upon double jeopardy in paragraph 7 to apply only 
when the judgment of acquittal has been rendered by 
a court of the same governmental unit, whether the 
Federal Government or a constituent unit, as is 
seeking a new trial for the same cause.

VII.  Procedure in the Case of Juvenile Persons

A separate system for juveniles, fundamentally 
different in theory and practice from adult criminal 
procedure, has been developed by the states.  In 
addition, the federal court system follows the 
requirements set forth in 18 U.S.C.    5031-42 for 
juveniles addressed under the federal juvenile 
delinquency procedures.  The federal statute mirrors 
state statutes in a number of ways and codifies 
various rights held by juveniles in any delinquency 

Juvenile delinquency proceedings are not, strictly 
speaking, criminal procedures.  Juvenile proceedings 
take into account the age of the offenders and the 
desirability of promoting their rehabilitation, in 
part by avoiding the stigma of criminal arrest and 
conviction.  See In re Gault, 387 U.S. 1, 15-16 
(1966).  Proceedings in juvenile court may be held 
for three reasons.  A juvenile may be accused of an 
act that if committed by an adult would be a crime.  
Second, a juvenile may be involved in a proceeding 
where he or she is judged a person in need of 
supervision (PINS) for reasons such as truancy or 
being a runaway.  Finally, juvenile court may be the 
setting for a child neglect case or a case involving 
cessation of parental rights.

The exact age limits for the juvenile justice system 
vary.  In some four- fifths of the states, persons 
are considered juveniles and are subject to juvenile 
proceedings up to age 18.  The maximum age is 19 in 
one state and 16 or 17 in the remainder.  Each state 
provides for waiver to adult criminal court 
depending upon the crime and sometimes the wishes of 
the juvenile.

Juvenile courts make a finding of delinquency.  A 
juvenile may be found delinquent in a PINS case or 
where there is a "violation of a law of the United 
States committed by a person prior to his 18th 
birthday which would have been a crime if committed 
by an adult."  18 U.S.C.   5031.  For many years, 
one consequence of the difference in approach 
between criminal courts and juvenile courts was that 
juvenile proceedings did not afford the same 
procedural rights as are guaranteed by the 
Constitution in adult criminal proceedings.  
Beginning in the 1960's, however, courts in the 
United States extended constitutional guarantees to 
juvenile proceedings where punishments such as 
incarceration could result. Today, juveniles enjoy 
most of the same procedural guarantees as adults.

The U.S. Supreme Court in Gault found that the 
Constitution affords juveniles involved in 
delinquency proceedings (for criminal type actions) 
the following:  written notice of the charges in 
advance of the proceedings; assistance of counsel 
for the child with notice to the parents that this 
is the child's right and if the family cannot afford 
an attorney, one will be appointed by the court; 
protection from self-incrimination; and the right to 
confrontation of witnesses and cross-examination.  
Gault, 387 U.S. at 33, 36, 55, 56-7.  The Court also 
has stated that a finding of delinquency must be 
based on proof beyond a reasonable doubt.  In re 
Winship, 397 U.S. 358 (1970).  Courts have found 
that the Fourth Amendment requirement for probable 
cause applies to pretrial detention hearings. Moss 
v. Weaver, 525 F.2d 1258, 1260 (5th Cir. 1976).  The 
Supreme Court has noted, however, that where the 
state employs procedural safeguards such as a 
probable cause hearing, the legitimate state 
interests in preventive detention do not violate the 
Constitution.  Schall v. Martin, 467 U.S. 253 

These and other protections for juveniles are 
codified in federal law at 18 U.S.C.    5031 to 5047 
(notice--  5034; counsel--  5035; speedy trial--  
5036; dispositional hearing within 20 days--  5037; 
privacy of juvenile delinquency records--  5039; no 
juveniles in adult jails or correctional 
institutions--  5039).  Minors who are incarcerated 
are entitled to be segregated from adult inmates and 
to be accorded treatment appropriate for their age 
and legal status.  18 U.S.C.   5035.

Although one quarter of the states provide for jury 
trials for juveniles, the U.S. Supreme Court has 
found that given the special aspects of juvenile 
proceedings, juveniles do not have a constitutional 
right to a jury in a delinquency proceeding.  
McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971).

Confidentiality is one of the special aspects of 
juvenile proceedings.  Juvenile proceedings are 
generally closed to the public and press.  Most 
states provide for strict limitations on access to 
juvenile records or files.

Police provide the majority of referrals to juvenile 
court.  Usually offenders are not detained beyond 
the need to complete the necessary processing and 
contact with the parents or guardians.  Juveniles 
may be detained in juvenile facilities if the 
juvenile has committed a serious offense and is 
considered a danger to the public.  See 18 U.S.C.   
5035; Schall v. Martin, 467 U.S. 253 (1984).

The treatment of juvenile offenders by methods other 
than institutionalization generally is encouraged.  
These include counseling, rehabilitation, community 
service, and restitution. Such programs are often 
employed in the case of less serious crimes such as 
theft.  The federal government has supported the 
growth of such alternatives, with the passage of the 
Juvenile Justice and Delinquency Act of 1974.  42 
U.S.C.    5601 et seq.

The design and operation of the juvenile justice 
system throughout the United States is subject to 
continuing re-examination.  This results in part 
from the tension between the historic concept of 
delinquency proceedings as nonadversarial, akin to 
parental punishment, and the more recent 
determination that juveniles should enjoy the 
protections of adult criminal procedure.  In 
addition, concerns about the quantity and severe 
quality of some "juvenile" crime have caused many to 
question whether the juvenile justice system, as 
presently conceived, is adequate or appropriate for 
certain serious offenders.

The increase in serious violent crime committed by 
juveniles in particular is cause for growing 
concern.  According to U.S. Department of Justice 
statistics, juvenile arrests for violent offenses 
increased 50 percent in the five years between 1987 
and 1991, with arrests for murder increasing by 85 
percent. Although those arrested for violent crime 
constitute only a small percentage of all juvenile 
arrests -- only about 5 percent -- they constitute a 
significant portion of arrests for violent crime 
overall.  In 1991, for example, juvenile arrests 
constituted some 17 percent of all arrests for 
violent crime.

The juvenile system is not well designed to deal 
with particularly serious or "hard core" offenders.  
One approach to this problem in certain cases where 
a particularly serious crime has been committed or, 
in view of the juvenile's previous record, juvenile 
proceedings are no longer considered effective, is 
to remove persons from the juvenile justice system 
to the adult criminal justice system.

The determination whether to treat a person within 
the statutory age category of "juveniles" as an 
adult is made by a juvenile transfer procedure in 
nearly all states.  Under such a procedure, a judge 
decides after a hearing whether a transfer is in the 
best interests of the child and the public.  Appeals 
are permitted.  In some states, a prosecutor has 
discretion over whether to bring a case in criminal 
or juvenile court.  Some state laws also provide for 
automatic prosecution in criminal court for serious 
offenses, repeat offenders, or routine traffic 
citations.  A juvenile who is subject to the adult 
criminal justice system is entitled to the 
constitutional and statutory rights and protections 
provided for adults and described in this report.

U.S. Reservation.  In view of the above, the United 
States conditioned its ratification of the Covenant 
on the following reservation:

     The policy and practice of the United States 
are generally in compliance with and supportive of 
the Covenant's provisions regarding treatment of 
juveniles in the criminal justice system.  
Nevertheless, the United States reserves the right, 
in exceptional circumstances, to treat juveniles as 
adults, notwithstanding paragraphs 2(b) and 3 of 
Article 10 and paragraph 4 of Article 14.  The 
United States further reserves to these provisions 
with respect to individuals who volunteer for 
military service prior to age 18.

VIII.  Military Justice System

The rules for the operation of military courts 
provide a similar range of protections to those 
afforded civilians, although with some exceptions.  
For example, Rule for Court-Martial (R.C.M.) 706, 
Manual for Courts-Martial (1984), mandates that 
courts-martial shall be open to the public, 
including members of both the military and civilian 

An accused is presumed innocent until proven guilty 
beyond a reasonable doubt.  Under Rule for Court-
Martial 910, if an accused fails or refuses to 
plead, or makes an irregular plea, the military 
judge shall enter a plea of not guilty for the 

Article 30 of the Uniform Code of Military Justice 
(UCMJ) requires that the accused be informed of the 
charges as soon as practicable (Section 830, Title 
10, United States Code).  Rule for Court-Martial 
(R.C.M.) 602 requires that charges which have been 
referred to trial be served upon the accused by the 
trial counsel and that, in time of peace, no person 
may, over objection, be brought to trial by general 
court-martial within a period of five days after 
service of charges, or before a special court-
martial within three days after service of charges.  
The accused must be brought to trial within 120 days 
of referral of charges, imposition of restraint, or 
entry on active duty (R.C.M. 707).

The independence of military judges is of paramount 
importance to the military justice system.  Federal 
law mandates that the military judge shall be a 
commissioned officer, and a member of the bar of a 
federal court or a member of the bar of the highest 
court of a state.  10 U.S.C.   826.  Neither the 
convening authority nor any member of the convening 
authority's staff may prepare or review the military 
judge's effectiveness report.

Rule for Court-Martial 104 prohibits unlawful 
command influence of the court-martial process and 
court personnel, including the military judge.  No 
convening authority or commander may censure, 
reprimand, or admonish a military court or its 
personnel with respect to the findings or sentence 
adjudged or other exercise of the court proceedings 
or functions.

Under R.C.M. 804, the accused is required to be 
present at every stage of the trial proceedings, 
unless, after arraignment, the accused is 
voluntarily absent or his disruptive conduct causes 
the accused's removal or exclusion from the 

The accused has the right to be represented at a 
general or special court-martial or at a pretrial 
investigation by civilian counsel if provided by 
him, by detailed military counsel, or by military 
counsel of the accused's own choosing if that 
counsel is reasonably available.  Military counsel 
are provided at no expense to the accused.  10 
U.S.C.   838. 

The defense counsel has an opportunity to obtain 
witnesses and other evidence.  The process to compel 
witnesses to appear and to testify and to compel the 
production of evidence is similar to that of other 
criminal courts in the United States.  10 U.S.C.   

The military rules make provision for the employment 
of interpreters, when necessary, under R.C.M. 501 
and 502. No person may be compelled to incriminate 
himself or herself or to answer any question the 
answer to which may tend to incriminate him or her.  
10 U.S.C.   831. Military Rule of Evidence 304 
forbids the use of a statement obtained in violation 
of Section 831, or evidence derived therefrom.

Cases involving a punitive discharge, dismissal of 
an officer, death, or confinement of one year or 
more are reviewed by the accused's service Court of 
Military Review, unless the accused waives such 
review.  The Court of Military Review can correct 
any legal error it may find, and it can reduce an 
excessive sentence.  The accused is assigned an 
appellate defense counsel at no cost before the 
Court of Military Review.  The accused also may 
retain civilian counsel at the accused's expense to 
pursue an appeal.  10 U.S.C.   866.

If the accused is not satisfied by the decision of 
the Court of Military Review, the accused may 
petition the U.S. Court of Military Appeals for 
further review.  The Court of Military Appeals must 
review any sentence extending to death.  That court 
consists of five civilian judges, and it can correct 
any legal error it may find.  Counsel will be made 
available to assist in the petition to the Court of 
Military Appeals.  10 U.S.C.   867.

Unless the accused waives review, special courts-
martial not involving a punitive discharge or a 
sentence of confinement for one year or longer, will 
be reviewed by a judge advocate.  10 U.S.C.   864.  
In the case of a general court-martial, involving a 
similar sentence, the record shall be reviewed in 
the Office of The Judge Advocate General.  10 U.S.C. 

Upon motion by the accused, a charge or 
specification will be dismissed if the accused has 
previously been tried by court-martial or federal 
civilian court for the same offense.  Rule for 
Court-Martial 907.

Nonjudicial punishment is permitted by Article 15 of 
the UCMJ, 10 U.S.C.   815, and governed by the 
Manual for Courts-Martial. This procedure permits 
commanders to dispose of certain offenses without 
trial by court-martial unless the service member 

Service members first must be notified by their 
commanders of the nature of the charged offense, the 
evidence supporting the offense, and of the 
commander's intent to impose nonjudicial punishment.  
The service members may then consult a defense 
counsel to determine whether or not to accept 
nonjudicial punishment or demand trial by court-

A member accepting nonjudicial punishment may have a 
hearing with the commander.  The member may have a 
representative at the hearing, may request that 
witnesses appear and testify on behalf of the 
member, and may present other evidence.  The 
commander must consider any information offered 
during that hearing and must be convinced of guilt 
by reliable evidence before imposing punishment.

Members who wish to contest their commander's 
determination of guilt or the severity of the 
punishment imposed may appeal to the next higher 
commander.  The appeal authority may set aside the 
punishment, decrease its severity, or deny the 
appeal.  Nonjudicial punishment does not constitute 
a criminal conviction.

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