The Handy Law Answer Book. David L Hudson

conclusion necessarily entails the judgment that women are sufficiently numerous and distinct from men and that if they are systematically eliminated from jury panels, the Sixth Amendment’s fair-cross-section requirement cannot be satisfied.

      What is the importance of compulsory process?

      Compulsory process guarantees that a criminal defendant has the right “to have compulsory process for obtaining witnesses in his favor.” Without compulsory process, defense attorneys could not produce many witnesses, as many people would rather not get involved in the court process.

      What does assistance of counsel mean?

      This last freedom mentioned in the Sixth Amendment ensures that those defendants facing prison time have a lawyer to assist them in their defense. The U.S. Supreme Court in Gideon v. Wainwright (1963) recognized that attorneys in criminal cases are “necessities, not luxuries.”

       LegalSpeak: Crawford v. Washington (2004)

      First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.

      Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon the law of Evidence for the time being.

      The Court explained:

      Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can [542 U.S. 418] get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

       Who was the defendant in Gideon v. Wainwright?

      The defendant was Clarence Earl Gideon, who was charged with stealing money from a Florida pool hall. A jury convicted him of theft and a judge sentenced him to five years in jail. Gideon has asked for a lawyer to represent him, but the state of Florida at that time did not provide attorneys to those defendants who could not afford them. Gideon on his own wrote a five-page petition to the U.S. Supreme Court, asking them to hear his case. The U.S. Supreme Court appointed well-known D.C. lawyer Abe Fort-as to represent Gideon at the Court.

      How does the court determine if a defendant received effective assistance of counsel?

      The Sixth Amendment provides as a basic freedom “the assistance of counsel.” This means that a criminal defendant charged with a serious crime can receive an attorney appointed to represent him or her even if he or she cannot afford such counsel. But, the Sixth Amendment-based freedom means more than this. It also means that the defendant should receive competent counsel. Sometimes, criminal defendants challenge their underlying criminal conviction by asserting a so-called “ineffective assistance of counsel” claim either in state post-conviction proceedings or in federal habeas corpus proceedings. Both state post-conviction proceedings and federal habeas corpus proceedings take place after the trial and direct appeal in a criminal case.

      In its 1984 decision Strickland v. Washington, the U.S. Supreme Court identified the standard for determining whether a defendant truly received “ineffective assistance of counsel.” First, the defendant must show that his counsel was deficient and fell below an objective standard of reasonableness. This means that the attorney failed to perform as a reasonably competent attorney would under the circumstances. Then, the defendant must also show that the attorney’s deficient performance actually prejudiced the defendant, meaning that it likely impacted the outcome of the criminal trial proceeding. Thus, there are two prongs to the Strickland v. Washington test: (1) a deficiency prong and (2) a prejudice prong.

      It is very difficult to establish ineffective assistance of counsel, but some criminal defendants have been successful. One example is when a criminal defendant is able to show that his trial attorney failed to subpoena a key alibi witness crucial to the defense theory of the case. Another example would be if a criminal defendant could show that his trial counsel failed to advise him or her about a favorable plea bargain offer by the prosecution. Still another example would be where a criminal defense attorney failed to file a motion in court to suppress evidence that was seized unlawfully by the police.

SEVENTH AMENDMENT

      What freedom does the Seventh Amendment protect?

      The Seventh Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

      The Seventh Amendment extends the right of jury trial in a civil, or non-criminal, case. The Seventh Amendment also guards against a judge second-guessing the jury’s determination of the facts in a case. In our legal system, juries decide questions of fact, while judges decide questions of law.

      Torture has been common through much of history and is still practiced in some countries today. The Eighth Amendment of the Constitution, however, prohibits cruel and unusual punishment (iStock).

EIGHTH AMENDMENT

      How does the Court determine whether punishment is cruel and unusual?

      Courts ask whether the punishment comports with what are called “contemporary, evolving standards of decency.” They also examine whether the punishment for a crime is disproportionate to the offense. For example, a 20-year prison term for shoplifting a small amount of merchandise would appear to be quite disproportionate. The Courts also examine whether the punishment is directly related to legitimate penological objectives.

      Is the death penalty considered cruel and unusual?

      Currently, the death penalty per se is not considered cruel and unusual. Approximately 38 states still have the death penalty as an option in their criminal codes. The U.S. Supreme Court in Furman v. Georgia (1972; see LegalSpeak, p. 74) ruled 5 to 4 that Georgia’s death penalty statute did violate the Eighth Amendment. That ruling led to the invalidation of the death penalty nationwide for four years until the Court in Gregg v. Georgia (1976; see LegalSpeak, p. 78) upheld some more narrowly drafted death penalty statutes.

      Since 1976, the Court has never invalidated the death penalty on its face. Instead, it has prohibited application of the death penalty to certain types of defendants, including those who are insane in Ford v. Wainwright (1986), those who are mentally retarded in Atkins v. Virginia (2002), those who were juveniles when they committed murder in Roper v. Simmons (2005), those who are rapists in Coker v. Georgia (1977), and child rapists when the rapes do not result in murder as in Kennedy