DeShayla Strachan: Defendants have rights too: How the 6th Amendment guards against government abuse. – TwinCities.com-Pioneer Press

Editors note: Once a month through spring, Twin Cities law professors from diverse backgrounds and perspectives are writing about timely constitutional ideas and issues.Heres more about this series and previous columns.

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants certain rights when they have been formally accused of a criminal act. They have the right to a speedy trial (including a public trial without unnecessary delay), the right to a lawyer, the right to an impartial jury, the right to know who their accusers are, the nature of the charges against them, and the right to call witnesses.

This amendment was added to the Bill of Rights in 1791. It satisfies the democratic expectation of transparency and fairness in criminal proceedings. We will briefly explore each of these rights and what they mean in a criminal prosecution.

This amendment and the Constitution itself are important to me as a former state prosecutor because, when followed, they uphold the integrity of prosecution. Theyre special to me as a Black woman because the Constitution was not always meant to protect us as people, but we are now afforded equal protection under the law, and the accused are disproportionately Black people.

The requirements of a public and speedy trial are an essential part of due process. Without this right, criminal defendants could be held indefinitely for unproven accusations. This is one of the most important rights. If too much time passes, witnesses could die, move away, or simply forget what happened. Physical evidence could even be lost.

That said, there is no hard and fast rule on how long is too long to wait for trial. It varies state by state.

However, the U.S. Supreme Court laid out several factors to determine whether a trial is speedy enough. Those factors include the length of delay, the reason for the delay, and the defendants assertion of their right to a speedy trial.

The defendant can also waive their right to a speedy trial. This often happens when it is the accused requesting more time to prepare for trial. The court may ask that they waive their right to a speedy trial in order for the request to be granted.

If the right to a speedy trial has been violated before trial, the court may dismiss the charges. If it is determined the right to a speedy trial was violated after trial, a court could overturn a conviction.

Each state has its own speedy trial rules. When a criminal defendant demands speedy trial, that speeds up the clock and the government then has to bring the case sooner than planned, usually within 50 days of the demand. It also means the defendant must be available and ready for trial.

For federal cases, the Speedy Trial Act of 1974 states the trial must begin within 70 days of the date formal charges are filed or from the date the defendant appears before an officer of the court for which the charge is pending; whichever is later.

In Minnesota, when a defendant demands speedy trial, the trial must begin within 60 days from the date of the demand or plea, or within 10 days if the defendant is in custody for a misdemeanor. This rule does not apply to defendants entering guilty pleas.

The right to have the trial decided by a jury seeks to eliminate bias and protect impartiality. This section of the Sixth Amendment takes the case out of the judges hands and puts the decision-making on jurors. It allows the state and the defense attorneys to have a say in the jury selection. The lawyers on both sides have the opportunity to question the jury panel and screen out anyone who is potentially prejudiced.

Its what you have to look forward to when you receive that juror summons in the mail.

A pool of jury candidates will come into the courtroom for questioning by the lawyers and sometimes the judge as well. For example, if one juror says she hates all cops, she may be stricken by the prosecution. On the other hand, if the same juror said she respects all police officers, would believe anything they say, and is not able to put those beliefs aside to decide the case fairly, she may be stricken by the defense.

Attorneys also get a limited number of what are called peremptory challenges, which allow them to strike a potential juror for no reason at all.

This selection process is also known as voir dire, which is French for to speak the truth. The goal is to choose a diverse cross-section of the community to decide the case without bias.

In addition to a jury trial, this amendment guarantees a public trial. Thats important because it protects the accused from secret trials that may encourage abuse of the system.

There are some exceptions. For example, a judge may close public proceedings or limit access in certain cases to keep order in the court or prevent witness intimidation. You may have seen this in the Bill Cosby or Derek Chauvin trials which had limited access due to the high-profile nature of the cases.

The criminally accused have the right to an attorney. This right also applies to custodial interrogations. That means any time law enforcement questions you about a crime and you are not free to end the conversation, you have the right to a lawyer. It is important because without legal assistance, the police may intimidate or coerce an accused criminal to provide testimony against their will. The right to counsel evens the playing field so people accused of criminal activity cannot be bullied by the government.

Additionally, the right to legal counsel applies any time there is a criminal proceeding. Defendants who cannot afford a private attorney are entitled to a public defender. It doesnt guarantee there will be no conviction. Defendants can still be convicted even if they have the assistance of an attorney.

However, if it is proven that the attorneys performance was not effective or up to the reasonable standard for the profession, the criminal defendant may be able to get their conviction overturned.

Also, if a full defense is hindered by prosecutorial misconduct, the defendant may be able to challenge their conviction.

We saw this happen when Bill Cosby, who was convicted of sexual assault in 2018, was released from prison in July 2021. The prosecutor in that case promised Cosby in 2005 that he would not charge him criminally if Cosby testified in the civil case against him. But the prosecutor went back on his promise and charged Cosby anyway. The court ruled that when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that promise to the detriment of his constitutional right not to testify, the principal of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.

Criminal suspects must be made aware of who their accuser is and the crimes they are accused of committing.

This usually comes in the form of an indictment or formal criminal charge. In state criminal cases, it may come in the form of an arraignment, where an accused person is brought to court to answer a criminal charge. Both types of court hearings will give the accused criminal a list of the charges they face. The Confrontation Clause also gives criminal suspects the right to see their accuser(s) and cross-examine them. They can also call their own witnesses in their defense.

The confrontation of accusers usually plays out in trial when the prosecution calls witnesses who have knowledge of the facts in the case. This clause prevents the government from relying on hearsay or out-of-court statements.

Prosecutors must put their witnesses on the stand to testify under oath. The defense attorney representing the accused criminal can then question the governments witnesses to discredit them or poke holes in the states case. The questioning is often hostile and puts pressure on the witnesses to tell the truth.

The defense attorney can call witnesses at the end of the states case to tell the defendants side of the story but there is no requirement to do so. The defendant also does not have to testify in his or her own defense.

Other constitutional rights pertaining to suspected criminals include the Fourth Amendment right to be free from unreasonable search and seizure and the Fifth Amendment right to be protected from self-incrimination. But thats another article for another day.

If you have ever wondered how an attorney can defend a murderer, child abuser, or any other terrible criminal, remember, alleged criminals have rights too. They are the accused and are innocent until proven guilty. Criminal defense attorneys protect their clients constitutional rights and keep the government from abusing the system.

DeShayla Strachan is a visiting assistant professor at Mitchell Hamline School of Law. She is a former prosecutor as well as a former journalist.

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DeShayla Strachan: Defendants have rights too: How the 6th Amendment guards against government abuse. - TwinCities.com-Pioneer Press