ARTICLE VI.
RIGHTS OF ACCUSED PERSONS.
In all criminal prosecutions the accused shall enjoy the right to a speedy[1] and public[2] trial by an impartial jury[3] of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,[4] and to be informed of the nature and cause of the accusation;[5] to be confronted with the witnesses against him;[6] to have compulsory process for obtaining witnesses in his favor;[7] and to have the assistance of counsel for his defense.[8]
The importance of this provision is likely to be underestimated. Says Montesquieu, "Liberty consists in security. This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." And Lieber, in his very able work on Civil Liberty and Self-Government, says, "A sound penal trial is invariably one of the last fruits of political civilization, partly because it is one of the most difficult of subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society…. It is one of the most difficult things in all spheres of action to induce irritated power to limit itself."
Besides the guarantees of the constitution, Lieber mentions the following as characteristic of a sound penal trial: the person to be tried must be present (and, of course, living); every man must be held innocent until proved otherwise; the indictment must be definite, and the prisoner must be allowed reasonable time to prepare his defense; the trial must be oral; there must be well-considered law of evidence, which must exclude hearsay evidence; the judge must refrain from cross-examining witnesses; the verdict must be upon the evidence alone, and it must be guilty or not guilty; [Footnote: In some countries the verdict may leave a stigma upon an accused person, against whom guilt cannot be proven. Of this nature was the old verdict, "not proven.">[ the punishment must be in proportion to the offense, and in accordance with common sense and justice; and there must be no injudicious pardoning power, which is a direct interference with the true government of law.
Most, if not all but the last, of the points mentioned by Dr. Lieber are covered by that rich inheritance which we have from England, that unwritten constitution, the common law. The question of how best to regulate the pardoning power is still unsettled.
[1] He may have his trial at the next term of court, which is never very remote. But the accused may, at his own request, have his trial postponed.
[2] Publicity is secured by the keeping of official records to which all may have access, by having an oral trial, by the admission of spectators to the court room, and by publication of the proceedings in the newspapers.
[3] For the mode of securing the "impartial jury," see page 63.
[4] It is provided in the body of the constitution (III., 2, 3,) that criminal trial shall be by jury, and in the state where the crime was committed. This amendment makes the further limitation that the trial shall be in the district where the crime was committed, so a person accused of crime cannot be put to the trouble and expense of transporting witnesses a great distance.
[5] The nature of the accusation is specified in the warrant and in the indictment, both of which, or certified copies of them, the accused has a right to see.
[6] Not only do the witnesses give their evidence in the presence of the accused, but he has also the right to cross-examine them.
[7] But for this "compulsory process" (called a subpoena), persons entirely guiltless might be unable to produce evidence in their own behalf. The natural desire of people to "keep out of trouble" would keep some knowing the circumstances of the case from giving their testimony, and others would be afraid to speak up for one under a cloud and with all the power of the government arrayed against him.
[8] The accused may plead his own cause, or he may engage a lawyer to do it for him. If he is too poor to employ counsel, the judge appoints a lawyer to defend him, whose services are paid for out of the public treasury.
From the foregoing, it will be seen that great care is exercised to give a person accused of crime full opportunity to defend himself. And it must be remembered in this connection that it is a principle of our jurisprudence that the burden of proof lies upon the government. That is, the accused is to be deemed innocent until he is proved guilty. We prefer that a number of guilty persons should escape punishment rather than that one innocent person should suffer.