TITLE

THE SIXTH AMENDMENT LIVES! A REPLY TO PROFESSOR JONAKAIT

AUTHOR(S)
Bradley, Craig M.
PUB. DATE
September 1992
SOURCE
Journal of Criminal Law & Criminology;Fall1992, Vol. 83 Issue 3, p526
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
This article presents the author's comments to the article Foreword: Notes for a Consistent and Meaningful Sixth Amendment, by Randolph Jonakait. It would, indeed, be inconsistent with incorporation for the Court to modify de facto, the terms of the Sixth Amendment by adopting procedures that would make it impossible for a defendant to win a Sixth Amendment claim unless he could show that his trial was unfair. What Jonakait perceives as a retreat to due process standards is actually the Court taking the absolute constitutional guarantees for granted. The cases that come before the Court today present issues involving derivative rights--to effective assistance of counsel, to compel production of particular arguably inadmissible or irrelevant evidence, to ferret out possible bias by asking potential jurors certain questions on voir dire, among other rights. Such assertions of derivative rights necessarily require that the Court engage in a due process balancing approach, while it stands ready to reverse automatically any conviction in which textual guarantees of the Sixth Amendment have been violated. One could well argue that in cases addressing these derivative rights, the Court has struck the balance too far in favor of the government. Perhaps this is Professor Jonakait's real gripe. But to argue that these cases have deprived Sixth Amendment guarantees of any independent meaning and made them superfluous is simply wrong.
ACCESSION #
17526908

 

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