Like with other provisions of the Bill of Rights, the application of the Sixth Amendment evolved. In considering a bill of rights in August 1789, the House of Representatives adopted a proposal to guarantee a right to a jury trial in state prosecutions,1 but the Senate rejected the proposal, and the 1869 case of Twitchell v. Commonwealth ended any doubt that the states were beyond the direct reach of the Sixth Amendment.2 The reach of the Amendment thus being then confined to federal courts, questions arose as to its application in federally established courts not located within a state. The Court found that criminal prosecutions in the District of Columbia3 and in incorporated territories4 must conform to the Amendment, but those in the unincorporated territories need not.5 Under the Consular cases, of which the leading case is In re Ross, the Court at one time held that the Sixth Amendment reached only citizens and others within the United States or brought to the United States for trial, and not to citizens residing or temporarily sojourning abroad.6 Reid v. Covert made this holding inapplicable to proceedings abroad by United States authorities against American civilians.7 Further, though not applicable to the states by the Amendment’s terms, the Court has come to protect all the rights guaranteed in the Sixth Amendment against state abridgment through the Due Process Clause of the Fourteenth Amendment.8
The Sixth Amendment applies in criminal prosecutions. Only those acts that Congress has forbidden, with penalties for disobedience of its command, are crimes.9 Actions to recover penalties imposed by act of Congress generally but not invariably have been held not to be criminal prosecutions,10 nor are deportation proceedings,11 , nor appeals or post-conviction applications for collateral relief,12 but contempt proceedings, which at one time were not considered criminal prosecutions, are now considered to be criminal prosecutions for purposes of the Amendment.13
- 1 ANNALS OF CONGRESS 755 (August 17, 1789).
- 74 U.S. (7 Wall.) 321, 325–27 (1869).
- Callan v. Wilson, 127 U.S. 540 (1888).
- Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879). See also Lovato v. New Mexico, 242 U.S. 199 (1916).
- Balzac v. Porto Rico, 258 U.S. 298, 304–05 (1922); Dorr v. United States, 195 U.S. 138 (1904). These holdings are, of course, merely one element of the doctrine of the Insular Cases, De Lima v. Bidwell, 182 U.S. 1 (1901); and Downes v. Bidwell, 182 U.S. 244 (1901), concerned with the “Constitution and the Advance of the Flag,” supra. Cf. Rassmussen v. United States, 197 U.S. 516 (1905).
- In re Ross, 140 U.S. 453 (1891) (holding that a United States citizen has no right to a jury in a trial before a United States consul abroad for a crime committed within a foreign nation).
- 354 U.S. 1 (1957) (holding that civilian dependents of members of the Armed Forces overseas could not constitutionally be tried by court-martial in time of peace for capital offenses committed abroad). Four Justices, Black, Douglas, Brennan, and Chief Justice Warren, disapproved Ross as “resting . . . on a fundamental misconception” that the Constitution did not limit the actions of the United States Government against United States citizens abroad, id. at 5–6, 10–12, and evinced some doubt with regard to the Insular Cases as well. Id. at 12–14. Justices Frankfurter and Harlan, concurring, would not accept these strictures, but were content to limit Ross to its particular factual situation and to distinguish the Insular Cases. Id. at 41, 65. Cf. Middendorf v. Henry, 425 U.S. 25, 33–42 (1976) (declining to decide whether there is a right to counsel in a court-martial, but ruling that the summary court-martial involved in the case was not a “criminal prosecution” within the meaning of the Amendment).
- Citation is made in the sections dealing with each provision.
- United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32 (1812); United States v. Coolidge, 14 U.S. (1 Wheat.) 415 (1816); United States v. Britton, 108 U.S. 199, 206 (1883); United States v. Eaton, 144 U.S. 677, 687 (1892).
- Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909); United States v. Regan, 232 U.S. 37 (1914).
- United States ex rel. Turner v. Williams, 194 U.S. 279, 289 (1904); Zakonaite v. Wolf, 226 U.S. 272 (1912).
- Cf. Evitts v. Lucey, 469 U.S. 387 (1985) (right to counsel on criminal appeal a matter determined under due process analysis).
- Compare In re Debs, 158 U.S. 564 (1895), with Bloom v. Illinois, 391 U.S. 194 (1968).