Few criminal cases have higher stakes than those involving accusations of child sexual abuse. The accusation alone can permanently damage a person’s reputation in the community. A conviction may bring significant prison time, a sex offender registration requirement, and restrictions on employment options. With so much at stake, it becomes even more important to follow Constitutional procedures designed to prevent convictions based on false accusations. Yet many states have acted to eliminate one of the most important rights of an accused in sexual abuse cases: a defendant’s Sixth Amendment right to confront his accuser.
The “Confrontation Clause” of the Sixth Amendment guarantees the accused in a criminal trial the right “to be confronted with the witnesses against him.” The purpose of the Confrontation Clause is to allow the defendant to cross-examine his accusers. It assists in the truth-finding process by allowing the judge or jury to examine a witness’s demeanor in the courtroom to determine whether he or she is being truthful. Requiring an accuser to be in the presence of the accused encourages truthfulness, because it is more difficult to lie about someone in their presence.
Many states, however, have essentially eliminated the confrontation requirement in child sexual abuse cases. Due to the young age of child accusers and the sensitive nature of the subject matter being discussed, many states have given judges the discretion to keep the accusers out of the courtroom. Prosecutors claim that traumatized child victims must be shielded from further trauma that they believe will result from facing the defendant in open court. Instead, child accusers in these states are permitted to testify via closed circuit television from a location other than the witness stand and other than the courtroom. Although defense attorneys have challenged this position, the U.S. Supreme Court has upheld this practice. In Maryland v. Craig (1990), the Court ruled that, although the right to confront your accuser is important, that right is not absolute. Face-to-face confrontation sometimes gives way to the state’s interest in protecting children from potential psychological harm.
Yet defense attorneys continue to argue that shielding child accusers from the accused presumes the defendant’s guilt. More importantly, it deprives the defendant of the presumption of innocence. The threat increases that innocent people could be convicted if a child witness is lying or if the child’s memories are influenced by suggestive questioning from adults. Only by requiring a child witness to testify and be cross-examined in front of the defendant can a fact-finder arrive at the truth. While the youngest members of our society deserve to be protected, it should not be at the expense of fundamental due process rights of criminal defendants.
Despite its ruling, the Supreme Court continues to recognize the importance of face-to-face confrontation in criminal trials. Craig requires prosecutors to satisfy certain requirements in order to waive a child’s appearance in the courtroom. “The trial court must hear evidence and determine whether use of the one-way closed circuit television is necessary to protect the welfare of the particular child witness who seeks to testify.” Craig, 497 U.S. at 855.
Because the presence of the child in the courtroom can have such an impact on the finding of guilt or innocence, a criminal defense attorney should vigorously refute the necessity of closed-circuit testimony. A defense attorney can accomplish this by showing that the child witness’s trauma would be caused only by the courtroom generally, and not by the presence of the defendant. A skilled defense attorney will hold the State to its obligation, as the party with the burden of proof, to present evidence that the appearance of the child accuser in court will render the taking of testimony impossible. While seemingly a small battle in the war that a sexual abuse trial will be, its loss may result in denying a defendant his constitutional right to a fair trial.
By Vince Imhoff, Attorney at Law and Jay Mykytiuk, Attorney at Law
After voting to convict Martha Stewart on obstruction of justice charges, one juror told reporters that he believed the decision was a victory for the little guys. In denying Stewarts subsequent request for a new trial, the court expressed doubt that the jurors statement revealed an agenda to punish the wealthy. But was the judge too quick to dismiss the possibility that jurors convicted Stewart, a wealthy and successful CEO, at least partially on the basis of her wealth and success? Might it be possible that in the seemingly endless wake of highly publicized corporate scandalsEnron, Worldcom, Adelphijurors have become predisposed to punish wealthy defendants, regardless of actual guilt? To deny the possibility is to deny both human nature and a potential flaw in the American jury system.
The Sixth Amendment to the Constitution guarantees the accused in federal criminal trials a right to a speedy public trial in front of an impartial jury. Contrary to common belief, however, this right does not include a trial by a jury of ones peers. Historically, a defendants jury was composed of persons of his own social and economic class. In pre-Revolution England for example, trials involving titled nobility took place in the House of Lords. But consistent with American ideals of equality, our jury system operates as if we are all peers of one another, regardless of sex, race, religion, and wealth. For wealthy white-collar defendants, the practical effect of this egalitarianism is to place their fates in the hands of 12 jurors with whom they may share little in the way of common experience.
The common presumption is that wealthy defendants, by virtue of their ability to hire the best legal counsel, have an advantage at trial. While that argument may have some merit, wealth can be a double-edged sword. Resentment against wealthy corporate defendantsespecially those accused of crimes that resulted in financial loss to regular peoplemay outweigh any advantage gained by their wealth.
Public sentiment surrounding a Topeka, Kansas case of alleged corporate malfeasance illustrates the bias that wealthy corporate defendants may face in the post-Enron-era, and the uphill battle they face in finding an impartial jury. There, in what some called the Kansas-Enron, David Wittig was accused of looting a local utility. A local citizen expressed her frustration that “people at the top” get away with stripping a company and leaving the “little people” to pay the price. [Chicago Tribune, June 19, 2005] As a Topeka defense attorney aptly pointed out: “The tougher the economic times, the easier it is to dislike these guysYou put these guys making millions in front of a jury and the feeling becomes, Well, obviously they are not doing this legally.
This attitude is not isolated, and it indicates that attorneys of wealthy corporate defendants face an uphill battle at trial before the first piece of evidence is even presented.
Although the court has a duty to assure the accused a fair trial, the challenge falls to defense attorneys to identify potential jurors who are open to hearing the evidence and willing to hold the state to the burden of proving the case beyond a reasonable doubt. In cases where communities are saturated with pre-trial press coverage, the challenge is far more difficult. By the time Enron corporate executives faced trial, given the extensive news coverage, and investigative reports in magazines, newspapers, and many different television networks, many potential jurors may have already decided the defendants were guilty.
Voir Dire is the process of questioning potential jurors so that the attorneys for the State and the accused can challenge and remove jurors in the selection process. There is a risk, particularly in high profile cases, that jurors who have a particular agenda may shape their answers to avoid challenges for cause. Even if potential jurors assure the judge and attorneys that they are not already biased against wealthy defendants, there is no guarantee of their honesty. There is always a risk that some potential jurors in high-profile cases have sufficient social motives, or even mere desire to seek attention to know what to say to pass muster. Even social pressure in the selection process can stifle potential jurors from admitting their biases to the rest of the venire panelit is a common belief that many people hide secret judgmental beliefs, but few people will publicly admit to harboring such views.
Defusing resentment against the a perception that a client is privileged or believed her wealth placed her above the law both in the media and before thejury is essential to obtaining a fair trial in corporate malfeasance trials. A skilled attorney learns to probe potential jurors for their willingness to set aside considerations of wealth and privilege, and to see the clients humanity. Such attorneys also encourage jurors to picture the charge as something that could happen to them. For example, focusing a jury in a tax-fraud trial on the fact that everyone finds tax forms ambiguous and confusing, can help them relate to questionable deductions they may also have claimed in the past. Strategies such as these are essential to offering a client perceived as wealthy or privileged to receive a fair trial.
By Donna Ortlieb, Esq. and Natalie Banach
It has often been said that the fairness of a society can be determined by the treatment of its least favored citizens, and by definition, those accused of crimes fall into this category. Subject to the loss of liberty and sometimes even of life, those accused of crimes face potentially life-changing situations. Thus, before consigning them to such a fate, a just society would want to be exceptionally sure that the accused were in fact guilty of the crimes with which they were charged – in other words, that they were guilty beyond a reasonable doubt.
It is from this vantage point, that defendants’ rights begin to make sense. In order for a society to function with fairness and justice, a certain level of protection for the accused must be guaranteed. In the United States criminal justice system, these protections include the right to a speedy and public trial before a jury of one’s peers.
These three specific rights of the accused, which are clearly spelled out in the Sixth Amendment, provide a substantial amount of protection for any citizen accused of a crime. Moreover, as important as they are for the accused, they also provide a variety of safeguards for society at large.
A system of justice in which the innocent were jailed, the guilty ran free and in which prosecutors were able to go after political opponents, would be anything but just. Therefore, just as any free society could not exist without the right of free speech and expression, no democracy could exist without a fair justice system in which those accused of crimes were treated fairly and ensured their rights. It is in this context that some of the rights of the accused will be more clearly spelled out.
By the time of the American Revolution, trial by jury was an accepted and established right in the colonies. Seen as a basic form of protection, the colonists stood steadfast in their insistence to maintain trials by jury. At the time, the conventional juries were comprised of twelve jurors, chosen at random from the widest population.
One of the reasons the right to a trial by jury is offered to all criminal defendants is that it is a means of prohibiting oppression by the government. At its inception, the idea was that those being accused of serious crimes should be protected from unfounded charges and corrupt judges. Thus, providing the defendant with the opportunity to stand trial in front of a jury offers a unique safeguard against overzealous prosecutors and biased or eccentric judges.
A jury is usually composed of twelve members, although this isn’t always a strict requirement. In fact, the Supreme Court has recognized that all that is needed is that the jury be large enough to promote deliberation, that it be free from outside influences, and that it present the opportunity for a large cross-section of the population to be represented. The actual selection process permits lawyers from both sides to screen out potential jurors that have a bias (called a “challenge for cause”). Each lawyer is also allowed to eliminate a handful of jurors simply because they feel the person may not be sympathetic to their cause (called a “peremptory challenge”). However, a juror’s race, sex, religion or national origin is not a proper basis for exclusion. The exclusion of any specific segment of the population from jury service poses the risk of eliminating certain qualities of human nature and varieties of human experience from the process. Such exclusion deprives the trial of a perspective on human events that may have a significant, but unknown, importance.
The jury system is designed specifically to protect the rights of the accused. The idea is that a panel of one’s community members – one’s peers – is best qualified to make important decisions of innocence or guilt. In addition, the jury system enhances democracy by allowing ordinary citizens the opportunity to participate in the legal system, and to assess whether the system is functioning properly. Thus, a free and fair trial by a jury composed of one’s peers remains a vital right of both the accused and society at large.
The right to a speedy trial is among the most important rights of the accused. Its Intent is to prevent unnecessary and oppressive pretrial incarceration, and to preserve the ability to prepare and present a defense for the accused. The right commences when criminal prosecution begins and extends only to those people that have been accused of a crime. The idea is that the criminally accused cannot be confined in a jail cell indefinitely, and must be brought before a magistrate in a timely manner.
In order to assess whether the accused has been deprived of his right to a speedy trial, four factors are usually considered: the length of the delay, the reason behind it, the defendant’s assertion of his right, and the prejudice to the defendant. If a judge finds that a defendant has been deprived of his right to a speedy trial, the result can be dismissal of the charges or even the reversal of a conviction.
The public at large also has an interest in maintaining the right to a speedy trial. Not only do people in jail have to be supported at the public’s expense – through taxes – but a delay often diminishes any rehabilitative effects that the criminal justice system is intended to have.
The right to a public trial is imperative because it provides that the defendant’s family and friends, the community and the press can all observe whether the government is upholding the rights associated with the legal system. When trials remain secretive and no knowledge about them is distributed to the public at large, the opportunities for corruption increase greatly. Public trials, on the other hand, demand accountability by their very nature. Conclusion: A fair criminal justice system is one of the hallmarks of a well-functioning democracy. The rights associated with such a system, namely that of a speedy and public trial presided over by one’s peers, protect not only those accused of crimes, but also society at large. The rights of the accused therefore also become the rights of the public, and guarantee that everyone may examine how the system is functioning and whether it is fair.
Donna Ortlieb is an Imhoff & Associates, P.C. Criminal Defense Attorney in Southern California. Donna Ortlieb has practiced Criminal law for the past 7 years. Donna Ortlieb has successfully defended clients in criminal misdemeanor and felony matters. Donna Ortlieb has experience in jury and bench trials, arraignments, bail and O.R. release hearings, entry of negotiated pleas, sentencing hearings, restitution hearings, civil compromise hearing, and administrative law hearings. Donna Ortlieb is a member of the criminal appeals panel of Appellate Defenders, Inc., San Diego, the American Bar Association, Orange County Bar Association, National Association of Criminal Defense Layers, and California Attorneys for Criminal Justice. Donna Ortlieb attended Southwestern University Law, graduating in 1994 and obtained her undergrad from University of California, Irvine in 1991. (Updated Feburary 2006)
By Swazi Taylor, Attorney at Law and Natalie Banach
There are two fundamental principles which guide the United States federal criminal justice system and which protect the rights of an accused in a criminal prosecution. First and foremost is the principle that an accused is presumed innocent. The second basic constitutional principle of law places the burden of that proof squarely upon the prosecution. These two principles are vital components of the criminal justice system which apply to a criminal defendant up until a verdict is reached.
Yet there are many more rights guaranteed to persons accused of criminal conduct or charged with the commission of crimes. These rights are contained within the Bill of Rights of the Constitution of the United States and are also contained within the Constitutions of each of the States of these great United States. In addition, the Fourteenth Amendment of the Constitution of the United States extends these protections to all citizens of each state within the United States. For example, the Fourth Amendment guarantees the right of people to be secure in themselves and their homes and thus requires a search warrant to issue only with probable cause. Additionally, the Fifth Amendment guarantees that no person shall be held to answer for an infamous crime (interpreted as felony) without a Grand Jury indictment, that no person shall be tried twice for the same crime (double jeopardy) and that no person shall be compelled to be a witness against himself (self-incrimination), for example. It is the Sixth Amendment of the Constitution of the United States which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committedand to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
As the Sixth Amendment states and the Supreme Court has ruled with several exceptions that, an accused is guaranteed the right to a trial by jury. Further, an accused has the right to be informed of the nature and cause of the accusation. This generally occurs at the arraignment, where an accused is presented with the complaint that contains the charges, which have been filed against him. It is the “confrontation clause” of the Sixth Amendment that guarantees an accused the right to “be confronted with the witnesses against him. [Exactly what does this mean?] Black’s Law Dictionary has traditionally defined confrontation as the “act of sitting a witness face to face with defendant [accused], in order that the defendant may make any objections he has to the witness’, or that the witness may identify the accused,” Black’s Law Dictionary, 4th Edition.
The essence of the right to confront witnesses, as guaranteed by the Sixth Amendment of the Constitution of the United States, is the right of an accused to confront his accusers, that is, to cross-examine (question) the witnesses who present evidence against him. The questioning is designed to uncover bias, inability to perceive or observe, and, generally, to dilute the strength of the evidence that the witness offers. The Sixth Amendment was written to prevent secret trials and to prohibit the use of using as evidence written statements from absent witnesses (hearsay), except in rare situations codified in the Federal Rules of Evidence and various State Evidence Codes. In recent years, legislators, concerned that those accused sometimes escaped punishment because the minors were afraid to testify in open court, have written special confrontation rules for minor complainants in child sexual assault cases. Consequently, new evidentiary rules were adopted to allow children to testify via closed-circuit television. Here, the accused can see the child, but the child does not see the accused. Instead, the child faces defense counsel, who conducts the cross-examination. Although every accused is guaranteed the right to cross-examine any witness that comes before them, an accused is not required to provide any new evidence or any witnesses to prove their innocence. Remember, it is the prosecution who bears the burden of proof beyond a reasonable doubt. Therefore, an accused may sit silent and say or do nothing. Generally, though, an accused hires an attorney to assist in his defense. The accused will work with counsel in deciding how his defense will proceed. The defense may consist of simply challenging the reputation, credibility or legality of the prosecution’s evidence or witnesses. Or, the defense may merely challenge the prosecution’s case by arguing that the proof does not rise to the constitutional level of proof required, that is, proof beyond a reasonable doubt.
The defense of a person charged with the commission of a crime is complicated and dictated by many varied rules and principles. Therefore, if you or a loved one is under investigation or is accused, it is imperative that you seek the counsel of an experienced criminal law attorney, who can help unravel the maze of the criminal justice system and protect the accuseds rights.
By Michael Grahn, Esq. and Helen O. Kim
The Sixth Amendment to the United States Constitution provides that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, and to have the Assistance of Counsel for his defense. The right to have assistance of counsel requires individual states to appoint attorneys for indigent defendants in criminal cases. Gideon v. Wainwright, 83 S. Ct. 792 (1963). However, there are two important limitations on this right to an appointed attorney. First, the right to an attorney does not attach until the formal initiation of criminal proceedings by complaint, indictment or information. Kirby v. Illinois, 406 U.S. 682, 689 (1972). Second, all states and the federal government have some type of cost recoupment system that allows states and the federal government to recover from indigent defendants some of the costs of providing counsel to them.
In a long line of cases dating back to 1932, the Supreme Court has held that the Sixth Amendment right to the assistance of counsel does not attach until a person is formally charged with a crime. Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682, 689 (1972). This holding means that when a person is under investigation by law enforcement she does not have a right to court appointed counsel to assist her in responding to and protecting herself from the authorities. Only where the government had crossed the constitutionally significant divide from fact-finder to adversary can an uncharged person have the right to an appointed attorney. Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986). Essentially, an uncharged person is entitled to appointed counsel only when the government intentionally delays filing charges in order to avoid the protections of the Sixth Amendment. Bruce v. Duckworth, 659 F.2d 776, 783 (7th Cir. 1981).
The Supreme Court has unambiguously held that the Sixth Amendment requires appointment of counsel for indigent defendants. Gideon v. Wainwright, 83 S. Ct. 792 (1963). In recent years, the federal government and all the states have established systems to seek reimbursement from indigent defendants for some of the costs of appointed counsel. The constitutionality of recoupment statutes has been challenged on grounds that such statutes deny the indigent defendant her Sixth Amendment right to assistance of counsel and her Fourteenth Amendment right to Equal Protection of the laws and Due Process. While some of the specific state systems have been deemed unconstitutional in application, the concept that governments can seek to recoup some of the costs of appointing counsel for indigent defendants has been consistently upheld.
In some cases where courts have considered the validity of state recoupment statutes under the Sixth Amendments right to assistance of counsel, courts have held that such statues did not deny indigent defendants right to assistance of counsel. On the other hand, some courts have held that such statutes were unconstitutional because they discouraged indigent defendants from exercising their right to have assistance of counsel. In State of Alaska v. Albert, 899 P.2d 103 (Alas. 1995), the Supreme Court of Alaska held that Alaskas recoupment statute did not violate indigent defendants right to counsel because there was no evidence that the recoupment system caused indigent defendants to refuse counsel more frequently than non-indigent defendants. Likewise, In Fuller v. Oregon, 94 S. Ct. 2116 (1974), the United States Supreme Court held that because Oregons recoupment statute only imposed obligation to repay costs of counsel on those with foreseeable ability to meet that obligation, it did not deter indigent defendants from exercising their right to counsel. In certain jurisdictions, recoupment statutes do not require a court to determine an indigent defendants ability to pay prior to the recoupment judgment. Furthermore, some jurisdictions do not require determination of the indigent defendants ability to pay prior to recoupment judgment even if jail is a possible consequence for nonpayment.
While some state recoupment statutes have been deemed constitutional because the statute did not violate the Sixth Amendment by discouraging indigent defendants to exercise their right to counsel, other state recoupment statues have been held unconstitutional because the statute chilled an indigent defendants exercise of the right to counsel. In Fitch v. Belshaw, 581 F. Supp. 273 (1984), Oregons recoupment statute authorized courts to assess the cost of court-appointed counsel if the court determined that the indigent defendant was able to repay attorneys costs. However, all defendants who requested appointment of counsel were required to sign an affidavit promising to repay the costs of appointed counsel, discouraging defendants to exercise their Sixth Amendment right. The court held that Oregons recoupment statute unconstitutionally chilled indigent defendants exercise of the Sixth Amendment right to counsel because it required all indigent defendants to promise to repay their attorney costs whether or not they had the means to repay.
Section 1 of the Fourteenth Amendment to the United States Constitution provides that, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In cases where courts have considered the validity of state recoupment statutes under the Due Process Clause of the Fourteenth Amendment, courts have held that such statues did not deprive indigent defendants of liberty or property interests within the meaning of the Due Process Clause. In Wicks v. Charlottesville, 208 S.E.2d 752 (Va. 1974), Virginias recoupment statute permitted automatic taxation of a convicted defendant for repayment of attorneys fees. The Supreme Court of Virginia held that while the United States Constitution assures every accused a right to court-appointed counsel, no court has held that every constitutional right or privilege must be available to all persons without any cost or obligation on their part. Hence, the Court found Virginias recoupment statute valid under the Due Process Clause. On the other hand, in Fitch, supra, indigent defendants claimed that Oregons recoupment statute deprived them of substantial liberty and property interests without notice or hearing in violation of the Due Process Clause. Under the Oregon recoupment statute, indigent defendants who failed to repay the cost of counsel were subject to civil judgments, suspension of a drivers license, arrest and imprisonment. The court held that such property and liberty interests were substantial, especially when the statute did not require a notice or hearing, and thus the Oregon recoupment statute deprived indigent defendants of liberty and property without due process.
In Alaska, supra, indigent defendants argued that state recoupment statutes violated the Equal Protection Clause of the Fourteenth Amendment. Under Alaskas recoupment statute, indigent defendants had far less opportunity to challenge the attorneys fees assessed by the state recoupment statute than did more affluent defendants who wanted to challenge the fees charged by their private attorneys. However, the court held that the recoupment statute served a legitimate state purpose, to obtain payment for the cost of appointed counsel. Hence, the court held that Alaskas state recoupment statute did not violate the Equal Protection Clause of the Fourteenth Amendment because the procedure granted to indigent defendants, even if different from procedure granted to more affluent defendants, achieved a legitimate state purpose with administrative efficacy while protecting the rights of criminal defendants. On the other hand, the Supreme Court in James v. Strange, 92 S. Ct. 2027 (1972), held that Kansas recoupment statue was unconstitutional because it did not allow indigent defendants all of the exemptions provided to other judgment debtors. The Court stated that Kansass recoupment statute treated indigent defendants discriminatorily from other judgment debtors and thus the statute violated the Equal Protection Clause of the Fourteenth Amendment.
The United States Constitution grants every criminal defendant a right to counsel. Accordingly, federal and state courts must provide indigent criminal defendants with court-appointed lawyers if they are unable to hire private counsel. However, all state and federal governments now have recoupment systems where able indigent criminal defendants are required to repay attorneys costs at the end of trial. If you are confronted with the option of requesting court-appointed counsel, it is important to consider the recoupment statues of that jurisdiction or consult an attorney to discuss the matter further. Additionally, if you are under criminal investigation but not charged with a crime, you should consult an attorney to determine whether you qualify for an appointed attorney and what can be done to avoid criminal charges.