Sixth Amendment — Right to Trial by Jury

Amdt6.4.1 Overview of Right to Trial by Jury

The Sixth Amendment guarantees the right to trial by jury for criminal defendants charged with non-petty offenses.¹ Article III of the Constitution also provides for jury trials in criminal cases.² As such, the Supreme Court has recognized that the Constitution protects the accused’s right to trial by jury twice,³ although the Court has grounded its analysis of the right primarily in the Sixth Amendment.⁴

By virtue of its incorporation through the Fourteenth Amendment Due Process Clause, the Sixth Amendment right to trial by jury applies in both federal and state court.⁵ A criminal defendant may, however, waive the right and agree to a trial before a judge alone.⁶ A valid waiver requires the “express and intelligent consent” of the defendant,⁷ along with the consent of the court and the prosecution.⁸ In a similar vein, a defendant may plead guilty in lieu of trial.⁹ A valid guilty plea requires knowing and intelligent waiver of the right to trial by jury,¹⁰ among other constitutional rights.¹¹

Amdt6.4.2 Historical Background on Right to Trial by Jury

The use of juries in criminal cases dates back to medieval England.¹ By the time of the founding, the right to trial by jury was well-recognized as a safeguard against the arbitrary exercise of power.² William Blackstone, in eighteenth century commentary familiar to the Framers, described the right as a bedrock guarantee of English criminal procedure:

Our law has therefore wisely placed this strong and two-fold barrier, of a presentment

and a trial by jury, between the liberties of the people, and the prerogative of the

crown. . . . [T]he founders of the English law have, with excellent forecast, contrived,

that . . . the truth of every accusation, whether preferred in the shape of indictment,

information, or appeal, should afterwards be confirmed by the unanimous suffrage of

twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.³

Most colonial charters protected the right to jury trial by guaranteeing colonists the enjoyment of the “liberties and immunities of Englishmen.”⁴ The constitutions of each of the original thirteen states also guaranteed the right.⁵

During colonial times, “[r]oyal interference with the jury trial was deeply resented.”⁶ Such interference took the form of numerous exceptions to the accused’s right to trial by jury.⁷ Many of the exceptions were for minor offenses, but some “bordered on serious felonies and were punished with appropriate severity.”⁸ As the Framers debated adding a Bill of Rights to the original Constitution, concerns surfaced that the jury trial provision of Article III offered the accused inadequate protection.⁹ Debate focused, in particular, over whether to build out the constitutional guarantee by including, in what eventually became the Sixth Amendment, a vicinage requirement (that is, a requirement that the jury be drawn locally)¹⁰ and language entitling the accused to strike potential jurors.¹¹ Criminal jury trial procedure took a variety of forms in the colonies,¹² which complicated the debate: representatives of some colonies were wary of procedural mandates that, if too specific, might clash with existing practices at home.¹³ The language that was ultimately ratified as the Sixth Amendment jury trial provision represents an apparent compromise between the desire to bolster what was seen as an essential guarantee and the desire to leave the language capacious enough to embrace the range of colonial practices.¹⁴

Amdt6.4.3.1 Early Jurisprudence on Right to Trial by Jury

The Sixth Amendment, by its plain language, extends its guarantees to “all criminal prosecutions.” Yet the Supreme Court has long excluded a category of minor offenses—called “petty offenses” in the doctrine, as distinct from “serious offenses”—from the reach of the right to trial by jury.¹ Considerations both historical and practical have served as justifications for this textual departure: as the Supreme Court recognized, “[s]o-called petty offenses were tried without juries both in England and in the Colonies . . . and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from . . . inexpensive nonjury adjudications.”²

The early doctrine did not trace a neat divide between petty and serious offenses but instead based the distinction on a broad analysis of the nature of each offense.³ This analysis considered the following factors: (1) whether the offense was triable by jury at common law; (2) whether the proscribed conduct was malum in se (i.e., inherently wrong)⁴ or merely malum prohibitum (i.e., prohibited by law but not inherently wrong)⁵; and (3) the maximum statutory penalty.⁶ Under this analysis, the Court held that the crime of reckless driving at excessive speed was not petty (and accordingly triggered the jury trial right), even though it carried a maximum penalty of only 30 days in jail, because the crime was indictable at common law and covered conduct that the Court considered malum in se.⁷ In contrast, the crime of conducting a secondhand sales business without a license, which had a maximum statutory penalty of ninety days’ imprisonment, was petty, the Court held, because it was not a crime at common law and amounted only to a breach of regulations (i.e., was malum prohibitum).⁸ Even these early cases, however, presaged in dicta the clearer rule that constitutes the Court’s current doctrine: crimes punishable by more than six months’ imprisonment cannot be deemed petty and are therefore subject to the jury trial right.⁹

The Court’s early doctrine on the right to jury trial also made special provision for summary trials for criminal contempt of court. In a long line of cases, the Court held consistently that the right simply did not apply to prosecutions for criminal contempt.¹⁰ These cases reasoned that contempt in England had not been triable by jury since at least the early eighteenth century,¹¹ and that courts would lose power to enforce their orders effectively and maintain courtroom decorum if required to submit cases of contempt to juries for adjudication.¹² Perhaps the most historically significant of these cases was also one of the most recent. In United States v. Barnett, the Court held that the governor and lieutenant governor of Mississippi did not have a right to a jury trial in a contempt prosecution for obstructing state officials’ compliance with federal court orders directing the University of Mississippi to admit an African-American student.¹³ But while the Barnett Court reiterated the rule against applying the jury trial right to contempt,¹⁴ the Court also expressed discomfort with the rule’s absoluteness.¹⁵ In Cheff v. Schnackenberg, decided two years later, the Court divided over the issue, with a plurality of four justices concluding that contempt did not require a jury trial so long as the actual sentence imposed did not exceed six months,¹⁶ while two concurring justices held to the absolute rule that the Sixth Amendment does not require a jury trial for any contempt offense.¹⁷ Criminal contempt continues to receive unique treatment under the Court’s current doctrine on the jury trial right.

Amdt6.4.3.2 Right to Trial by Jury Generally

The Supreme Court’s current doctrine on the applicability of the Sixth Amendment right to jury trial comprises two major principles: (1) the right applies to prosecutions for any offense with a maximum authorized penalty that exceeds six months’ imprisonment, because such offenses are not “petty”;¹ and (2) the right applies to the adjudication of all elements of a criminal offense, a category that includes any fact (other than the fact of a prior conviction) that increases the minimum or maximum applicable penalty.² As a result of this second principle, a statutory sentencing scheme cannot constitutionally delegate determination of any penalty-increasing fact to the judge at sentencing.³ Aside from these two major points, the Court has also established that the right to jury trial does not apply in juvenile court proceedings,⁴ military cases (e.g., courts martial),⁵ or proceedings to determine whether a defendant is intellectually disabled and therefore protected from capital punishment under the Eighth Amendment.⁶

Amdt6.4.3.3 Petty Offense Doctrine and Maximum Sentences Over Six Months

Under its earlier, multi-factor approach to defining petty offenses, the Supreme Court had given close and arguably preeminent consideration to the maximum statutory penalty.¹ In Baldwin v. New York, however, the Court fashioned from this criterion a bright line rule, stating: “we have concluded that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”² Robert Baldwin was charged in New York City with a pick-pocketing offense called “jostling,” punishable by a maximum of one year in prison.³ Under a New York City statute, he was not eligible for a jury trial and, over his Sixth Amendment objection, was tried and convicted before a judge instead.⁴ The Supreme Court, in pronouncing its bright line rule and holding that the denial of Baldwin’s request for a jury trial violated his Sixth Amendment right, relied primarily upon legislative consensus.⁵ Apart from New York City, the Court observed, no jurisdiction within the United States denied criminal defendants the right to jury trial for crimes with a maximum penalty exceeding six months’ imprisonment.⁶ The Court reasoned that this “near-uniform” legislative judgment about when the jury trial right should apply constituted “the only objective criterion by which a line could ever be drawn—on the basis of the possible penalty alone—between offenses that are and that are not regarded as ‘serious’ for purposes of trial by jury.”⁷ In the messy business of line-drawing, in other words, legislative consensus provided the best and only mark.⁸ The Court also concluded that the six-month rule struck the appropriate balance between the accused’s interest in “interpos[ing] between himself and a possible prison term . . . the commonsense judgment of a jury of his peers,”⁹ on the one hand, and the government’s interest in efficient and inexpensive adjudications, on the other hand.¹⁰

Although Baldwin established that the right to jury trial applies whenever the maximum sentence for an offense exceeds six months, the case did not address the counter-proposition: whether the right necessarily does not apply when the maximum sentence for the charged offense does not exceed six months’ imprisonment.¹¹

The Court took up this question in Blanton v. City of North Las Vegas, where it established a “presumption”—but not a rule—that an offense with a maximum sentence of six months or less is petty for Sixth Amendment purposes and thus outside the reach of the jury trial right.¹² A defendant might rebut this presumption in a “rare situation” by demonstrating “that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.”¹³ In Blanton, the defendants faced charges for driving under the influence of alcohol (DUI), punishable under Nevada law by a term of imprisonment ranging from two days to six months, a fine ranging from $200 to $1,000, a ninety-day driver’s license suspension, and a mandatory course on alcohol abuse.¹⁴ As an alternative to the prison term, the statute authorized the trial court to order offenders to perform forty-eight hours of community service in garb identifying them as DUI offenders.¹⁵ The Court held that these statutory penalties, as a package, were not sufficiently severe to rebut the petty offense presumption arising from the absence of a potential prison term exceeding six months.¹⁶ In particular, the Court concluded that the $1,000 maximum fine fell well within the range of fines typically associated with petty offenses, and that the alternate punishment of two days of community service in DUI-offender clothing did not impose a burden or level of embarrassment commensurate with a prison sentence exceeding six months.¹⁷

In the wake of Blanton, it remained unclear what kind of alternate penalties might suffice to render an offense punishable by a maximum prison sentence of six months or less (and, accordingly, subject to the presumption of pettiness) “serious” so as to trigger a right to a trial by jury under the Sixth Amendment.¹⁸ The Court reiterated after Blanton, in a case holding the jury trial right inapplicable to a federal DUI offense, that alternate, non-incarceration penalties would trigger the right only in “rare case[s].”¹⁹ On the other side of the ledger, a more recent case acknowledged, without having to decide the issue, that a federal environmental statute providing for a fine of $50,000 for each day of an ongoing violation—and therefore capable of triggering aggregate fines into the tens of millions of dollars—imposed a punishment sufficiently serious to fall within the jury trial right.²⁰

The other cases that bear most directly on the issue of when non-incarceration penalties trigger the jury trial right concern the imposition of large fines in criminal contempt prosecutions. Even before Baldwin, the Court had overruled its early doctrine treating contempt as a thing apart when it held that a case of “serious” contempt, like all other serious crimes, was subject to the jury trial right.²¹ The test the Court ultimately adopted to distinguish petty and serious cases of contempt, however, turns on the “penalty actually imposed” rather than the maximum statutory penalty.²² This distinction was necessary because varying degrees of contempt often do not have maximum penalties fixed in statute.²³ In Muniz v. Hoffman, the Court held that imposing, against a labor union defendant, a $10,000 fine with no prison sentence did not render a criminal contempt prosecution serious for Sixth Amendment purposes.²⁴ “Imprisonment and fines are intrinsically different” in terms of the deprivation they impose on a contemnor, the Court reasoned.²⁵ While the Court refused to rule out the possibility that a fine by itself could trigger the jury trial right in some cases, it held that the $10,000 fine imposed on a union with 13,000 members was not “of such magnitude” as to make the contempt prosecution “serious.”²⁶ In contrast, in International Union, United Mine Workers of America v. Bagwell, also involving labor union defendants, the Court held that the much larger criminal contempt fine of $52 million did trigger the jury trial right.²⁷ Bagwell and Muniz, although decided under the modified petty offense test that applies to criminal contempt prosecutions, together cast some light on the issue of when non-incarceration penalties cross the threshold of a “serious” offense: enormous fines like the one in Bagwell clearly do cross the threshold,²⁸ but even substantial fines like the $10,000 sum at issue in Muniz fall beneath the line and constitutionally may be prescribed for offenses tried without a jury.²⁹

A defendant charged with multiple counts does not have a right to a jury trial based on the aggregated maximum potential sentence on all counts combined; rather, the maximum statutory penalty for each individual offense controls the analysis.³⁰ In Lewis v. United States, the defendant faced two counts of obstructing the mail, each punishable by a maximum prison term of six months.³¹ The Supreme Court rejected the defendant’s argument that the total potential prison term of one year triggered the jury trial right.³² The Court reasoned that the legislative determination of the seriousness of an offense, as reflected in the maximum authorized sentence, governs the applicability of the jury trial right.³³ The maximum potential penalty faced by particular defendants based on the circumstances of their individual prosecutions is not relevant to that legislative judgment and thus not relevant to the Sixth Amendment question, the Court determined.³⁴ In other words, the constitutional issue of whether the jury trial right applies turns on the statutorily-defined offense, not on the case against the defendant.³⁵ In reaching this holding, the Lewis Court distinguished its earlier opinion in Codispoti v. Pennsylvania—which had held that the jury trial right applied where the total sentence imposed for multiple criminal contempt violations exceeded six months (even though none of the individual violations triggered a sentence over six months)³⁶—on the ground that the contempts at issue there did not have a statutory maximum penalty and therefore did not reveal a legislative judgment as to their seriousness.³⁷

Amdt6.4.3.4 Increases to Minimum or Maximum Sentences and Apprendi Rule

Since the landmark case Apprendi v. New Jersey,¹ decided in 2000, Supreme Court jurisprudence on the applicability of the jury trial right has focused on the constitutionality of sentencing laws that delegate to judges rather than juries the determination of certain facts that affect the range of potential sentences for a crime. Before Apprendi, the Court had upheld such laws on the reasoning that although the jury trial right extended to every element of a criminal offense,² it did not extend to “sentencing factors.”³ Apprendi changed this doctrine. The defendant in the case was convicted of a firearms offense punishable by a maximum prison term of ten years.⁴ Under a separate sentencing-enhancement statute, however, the maximum penalty increased to twenty years after a trial judge determined by a preponderance of the evidence—at a hearing held after the defendant pleaded guilty—that the defendant committed the offense with the purpose of intimidating a group of individuals due to their race.⁵ The trial court sentenced the defendant to twelve years in prison for the offense, two years above the statutory maximum that would have applied absent the judge-found fact.⁶

The Supreme Court held that this sentencing procedure violated the Sixth Amendment.⁷ The Court articulated its essential holding as follows: “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”⁸ The jury trial right serves as a bulwark against unjust loss of liberty at the hands of government tyranny or oppression, the Court reasoned.⁹ Accordingly it does not comport with the Sixth Amendment to take the determination of facts that can lead to increased punishment away from the jury,¹⁰ especially in light of the historic connection between offense and punishment in the Anglo-American legal tradition.¹¹

Amdt6.4.3.5 Sentencing Guidelines

The rule of Apprendi upended the use of binding sentencing guidelines in state and federal courts. In Blakely v. Washington, decided in 2004, the defendant pleaded guilty to an offense (second degree kidnapping involving domestic violence and use of a firearm) with a statutory maximum sentence of ten years in prison based on the applicable felony class.¹ The state sentencing guidelines restricted the sentence to a “standard range” of forty-nine to fifty-three months, unless the trial judge found the presence of an aggravating factor that justified an “exceptional sentence” above the standard range.² The trial judge did find an aggravating factor (deliberate cruelty) and imposed a sentence of ninety months—thirty-seven months above the upper limit of the “standard range” but thirty months below the ten-year maximum linked to the felony class.³ The Supreme Court held that the imposition of the sentence violated the Sixth Amendment,⁴ stating “[t]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”⁵ The ten-year offense maximum did not matter for Sixth Amendment purposes because the binding guidelines directed the judge to impose a sentence within the much lower “standard range” absent an aggravating factor.⁶ The “standard range,” therefore, constituted the maximum sentence authorized “without any additional findings”; the fact that a judge instead of a jury made the additional finding necessary to permit a sentence above this range violated the right to jury trial.⁷

The year after Blakely, the Supreme Court applied Apprendi to federal sentencing law in the 2005 case United States v. Booker.⁸ Since 1987, federal statute had required (with limited exception) federal district courts to impose sentences within narrow ranges calculated under the Sentencing Guidelines of the United States Sentencing Commission.⁹ Booker produced two separate majority opinions: one majority struck down a sentence imposed under the mandatory federal guidelines as unconstitutional, but a different majority (which shared only one member, Justice Ruth Bader Ginsburg, with the first majority) set the remedy and path forward.¹⁰ The first majority determined that the federal guidelines, like the state guidelines at issue in Blakely, violated the Sixth Amendment because they premised increases in the maximum authorized sentence upon judicial factfinding.¹¹ One of the defendants in Booker, for instance, saw his sentencing range for a narcotics violation under the federal guidelines increase significantly (from 210–262 months to 360 months’ life imprisonment) due to two factual findings made by the trial judge during the sentencing proceedings.¹² The trial court ultimately imposed a sentence of 360 months.¹³ Applying Apprendi and Blakely, the first Booker majority held that the “need to preserve Sixth Amendment substance” and the “ancient guarantee” of the jury trial right required invalidation of that sentence.¹⁴

While the first Booker majority’s holding followed ineluctably from Blakely,¹⁵ the second majority’s formulation of a remedy broke newer ground. It transformed the federal guidelines from mandatory to advisory in nature by severing and excising two provisions of the federal sentencing statute that required federal courts to follow the guidelines, but leaving the rest of the statute and the guidelines program it created intact.¹⁶ In their advisory form, the guidelines no longer violated the jury trial right because, rather than requiring the court to impose a particular sentence based upon a judge-found fact, they now simply offered recommendations as to how judges should “exercise [their] broad discretion in imposing a sentence within a statutory range.”¹⁷ As modified, federal sentencing law would now “require[ ] a sentencing court to consider guidelines [sentencing] ranges, but . . . permit[ ] the court to tailor the sentence in light of other statutory concerns as well . . . .”¹⁸ Further, the sentences imposed by district courts would be subject to appellate review only for “unreasonableness,” rather than de novo review for compliance with the guidelines.¹⁹ The second majority reasoned that this remedy effectuated Congress’s goal of instilling uniformity in federal sentencing better than the primary alternative remedy, which would have retained the mandatory nature of the guidelines but barred sentencing courts from increasing a sentence based on a judge-found fact.²⁰

After Booker, the Court struck down another determinate sentencing scheme in Cunningham v. California because, much like the guidelines schemes at issue in Blakely and Booker, the California sentencing law at issue authorized the trial court to depart upwards from a standard sentencing threshold if the court found one or more “circumstances in aggravation.”²¹ The defendant’s offense in that case triggered a standard sentence or “middle term” of twelve years, but the trial court departed upwards and sentenced the defendant to the “upper term” of sixteen years after finding the presence of six aggravating factors.²² The Supreme Court held this sentencing procedure unconstitutional under a straightforward application of Apprendi.²³

Amdt6.4.3.6 Appellate Review of Federal Sentencing Determinations

A series of decisions clarified the “unreasonableness” standard of appellate review that Booker established for federal sentencing determinations under the now-advisory federal guidelines.¹ First, Rita v. United States held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.”² In other words, if a district court calculates the defendant’s sentencing range correctly and imposes a sentence within that range, it does not violate the Sixth Amendment for the appellate court to presume the reasonableness of the sentence.³ While recognizing that such a presumption would have some tendency to encourage district courts to follow the guidelines, the Supreme Court held that the presumption nevertheless does not violate the jury trial right because it does not go so far as to “forbid” deviation from the guidelines ranges absent judicial fact-finding.⁴

Whereas Rita concerned appellate review of sentences within the guidelines ranges, the Court took up the matter of appellate review of sentences that deviate from the guidelines (non-guidelines sentences) in Gall v. United States.⁵ There, the Court reaffirmed that the “unreasonableness” standard of review applies to all federal sentences, including non-guidelines sentences.⁶ “Appellate courts may . . . consider the extent of a deviation from the Guidelines,”⁷ but they may not “apply a presumption of unreasonableness” to non-guidelines sentences.⁸ Nor may appellate courts apply standards of review that “come too close” to a presumption of unreasonableness, such as a rule that non-guidelines sentences must be supported by “extraordinary circumstances” or a “rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.”⁹ To subject non-guidelines sentences to additional scrutiny of this sort, the Court reasoned, would too nearly resemble a requirement that sentencing judges follow the guidelines—exactly what Booker struck down.¹⁰

Two cases concerned below-guidelines sentences imposed for crack cocaine offenses. In Kimbrough v. United States¹¹ and Spears v. United States,¹² the Supreme Court held that district courts have authority to “vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”¹³ Until 2007, the federal guidelines employed a “100-to-1 ratio” that treated every gram of crack cocaine as equal to 100 grams of powder cocaine for purposes of setting sentencing ranges for cocaine offenses.¹⁴ The Supreme Court concluded in both Kimbrough and Spears that the discretion left to district courts under the post-Booker advisory guidelines permits “categorical disagreement” with the crack cocaine provisions by the sentencing court and is subject only to deferential abuse-of-discretion review of the imposition of a particular sentence.¹⁵ Accordingly, in both cases, the Court reversed appellate court decisions that treated non-guidelines sentences based on categorical disagreement with the crack cocaine guidelines as invalid per se.¹⁶ The Supreme Court did not clarify, however, whether its holding extended beyond the crack cocaine provisions to categorical disagreement with other guidelines provisions.¹⁷

Amdt6.4.3.7 Other Applications of Apprendi

Apprendi prompted a major revision of the Court’s Sixth Amendment jurisprudence concerning sentencing procedure in death penalty cases. In Ring v. Arizona, the Court struck down an Arizona statute (which the Court had upheld before Apprendi) that conditioned imposing the death penalty upon a judge’s factual determinations as to the presence or absence of enumerated aggravating factors.¹ Although the statute imposed a burden on the prosecution to prove the existence of the aggravating factors beyond a reasonable doubt, the Court ruled that, under Apprendi, those findings must be made by a jury rather than a judge.² In Hurst v. Florida, the Court extended this holding to invalidate Florida’s death penalty statute (also upheld before Apprendi), which used an advisory jury to make a sentencing recommendation but left the ultimate sentencing determination to “the trial judge’s independent judgment about the existence of aggravating and mitigating factors.”³ In striking down the statute, the Court reiterated that the jury trial right requires the government “to base [a defendant’s] death sentence on a jury’s verdict, not a judge’s factfinding.”⁴

In a different vein, Apprendi applies to the factual predicates for mandatory minimum sentences. The Supreme Court held in Alleyne v. United States that “[a]ny fact that increases the mandatory minimum is an ‘element’ [of the offense] that must be submitted to the jury.”⁵ Alleyne overruled one post-Apprendi case⁶ and one pre-Apprendi case,⁷ both of which upheld statutory schemes that premised increases in the mandatory minimum sentence upon judicial fact-finding.⁸ The Alleyne Court rejected attempts to “distinguish facts that raise the maximum from those that increase the minimum” under Apprendi’s Sixth Amendment analysis;⁹ both types of facts, the Court reasoned, constitute offense elements and therefore fall within the scope of the jury trial right.¹⁰ Accordingly, “[j]uries must find any facts that increase either the statutory maximum or minimum,”¹¹ except for the fact of a prior conviction.¹²

In United States v. Haymond, a splintered majority of five Justices extended Alleyne to the context of supervised release.¹³ Haymond held unconstitutional a federal statute, 18 U.S.C. § 3583(k), that required imposing a mandatory minimum term of imprisonment of five years for any violation of a condition of supervised release through the commission of certain federal crimes, such as the possession of child pornography, by defendants required to register as sex offenders.¹⁴ The statutory scheme required judges to determine violations by a preponderance of the evidence.¹⁵ A plurality of four Justices reasoned that punishments for supervised release violations constitute part of the overall punishment for the initial offense of conviction, and that, as such, any violation found by a judge that triggered a new mandatory minimum prison term violated the jury trial right under Alleyne.¹⁶ A concurring opinion that supplied the decisive fifth vote, however, offered a narrow rationale. That opinion reasoned that supervised release proceedings generally do not implicate the jury trial right, but that the unique nature of Section 3583(k)—essentially, its requirement of a mandatory minimum prison term for enumerated offenses—rendered it “less like ordinary revocation [of supervised release] and more like punishment for a new offense, to which the jury right would typically attach.”¹⁷

Apprendi also applies to the factual predicate for a criminal fine imposed for a non-petty offense.¹⁸ Under the petty offense doctrine, not all criminal fines trigger the jury trial right, but “[w]here a fine is substantial enough to trigger that right, Apprendi applies in full.”¹⁹ As a result, it violates the Sixth Amendment for a judge to make a factual finding that increases the maximum potential fine for a serious (non-petty) offense.²⁰ A judge may not, for example, determine the duration of ongoing criminal conduct in order to calculate the maximum potential fine under a statute prescribing penalties for each day of violation.²¹

In contrast, beyond the fact of prior conviction, at least one other type of factual determination relevant to sentencing remains unaffected by Apprendi. In Oregon v. Ice, the Supreme Court held that a state legislature may, without running afoul of the jury trial right, assign to a judge factual determinations that govern whether a defendant convicted of multiple offenses should receive consecutive rather than concurrent sentences.²² The Court noted that juries traditionally did not take part in this decision²³ and that states take a variety of approaches to regulating how judges make the decision.²⁴ Accordingly, on the basis of “twin considerations—historical practice and respect for state sovereignty,” the Court declined to extend Apprendi to the sentencing decision of whether to impose multiple sentences consecutively.²⁵

Amdt6.4.4.1 Overview of Scope of Right to Trial by Jury

The right to a jury trial entails the “right to have a jury make the ultimate determination of guilt.”¹ As such, the criminal jury is not a “mere factfinder,” but instead an adjudicative body that decides “guilt or innocence on every issue, which includes application of the law to the facts.”² The trial court may not usurp the jury’s function by directing a guilty verdict, “no matter how conclusive the evidence;”³ nor may the trial court “attempt[ ] to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.”⁴ In modern doctrine, these foundational principles regarding the scope of the jury function have had perhaps their most significant ramifications in due process jurisprudence, where the Supreme Court has addressed claims that particular types of jury instructions unconstitutionally impinge upon or skew the jury’s adjudicative task.⁵ The Court’s Sixth Amendment doctrine, on the other hand, has taken up three central issues of jury structure and operation: size, unanimity, and juncture (i.e., the stage of the proceedings at which the jury participates).

Amdt6.4.4.2 Size of the Jury

Under current doctrine, a criminal jury must have at least six members.¹ The Court’s early doctrine endorsed the stricter view that the Sixth Amendment required a twelve-member jury in conformity with historical practice.² But because the federal criminal system used a twelve-person jury,³ the Supreme Court did not squarely confront the constitutionality of a state law providing for smaller juries until after it held in Duncan v. Louisiana in 1968 that the jury trial right applied against the states.⁴ In the first case after Duncan to address such a law, Williams v. Florida,⁵ the Court rejected the traditional, historically-based view that the jury trial right required a twelve-person jury and applied instead a functional analysis to uphold a Florida law providing for a six-person criminal jury.⁶ The Supreme Court stated: “[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . [b]ut we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained.”⁷

Eight years later, in Ballew v. Georgia,⁸ the Court converted the six-person jury upheld in Williams into the constitutional minimum when it struck down a Georgia law providing for five-person juries in certain cases.⁹ Relying on a number of academic studies about problems with small juries released after Williams, the leading opinion in Ballew concluded that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.”¹⁰ Ballew did not overturn or disavow Williams; instead, it simply prohibited any “further reduction” in the jury size that Williams upheld.¹¹

Amdt6.4.4.3 Unanimity of the Jury

Under current doctrine, jury verdicts must be unanimous to convict a defendant of a non-petty offense in both federal and state criminal trials.¹ For federal criminal trials, the Supreme Court’s recognition of this unanimity requirement is long-standing, dating back at least as far as the late 1800s.² But for state criminal trials, it was not until 2020 that the Court held for the first time, in Ramos v. Louisiana, that the Sixth Amendment unanimity requirement applies by incorporation via the Fourteenth Amendment.³

Before Ramos, the unanimity requirement did not apply to state criminal trials under the splintered decision in the 1972 case Apodaca v. Oregon.⁴ This outcome was significant for the two states—Oregon and Louisiana—that authorized non unanimous verdicts in criminal trials (the other 48 states required unanimity).⁵ In Apodaca, the Supreme Court upheld a provision of the Oregon constitution that permitted jury verdicts by votes of 10-2 in all but first-degree murder cases.⁶ A plurality of four justices concluded that the Sixth Amendment did not require unanimity. Much like the Williams majority that upheld the six-person Florida jury, these justices preferred functional over historical considerations when interpreting the Sixth Amendment.⁷ They reasoned that a jury allowed to convict on a 10-2 vote adequately safeguarded a criminal defendant’s Sixth Amendment interest in “having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him . . . .”⁸ Justice Lewis Powell’s narrower concurrence, however, set the doctrine on unanimity that would endure until 2020. He agreed with four dissenters on the point that “in accord both with history and precedent . . . the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.”⁹ He voted to uphold the Oregon constitutional provision, however, on the ground that the Fourteenth Amendment Due Process Clause did not incorporate the unanimity component of the Sixth Amendment jury trial right, even though it incorporated the right to a jury itself.¹⁰ As a result, under Apodaca, federal but not state criminal juries were constitutionally required to render unanimous verdicts.¹¹

Until the Supreme Court overruled Apodaca in 2020, state laws that authorized small juries (as opposed to the twelve-member jury at issue in Apodaca) to render non-unanimous verdicts triggered special Sixth Amendment concerns. In Burch v. Louisiana, the Supreme Court held that six-person juries must convict unanimously.¹² The Court struck down, as a violation of the jury trial right, a Louisiana law permitting conviction for nonpetty offenses upon the agreement of five members of a six-person jury.¹³ Just as the Apodaca plurality opinion followed the reasoning in Williams in departing from historical understandings of jury structure to afford the states more flexibility in crafting criminal procedure, the Burch decision followed the reasoning in Ballew in putting a limit on the flexibility.¹⁴ The Burch Court conceded its inability to “discern a priori a bright line below which the number of jurors participating in the trial or the verdict”¹⁵ would violate the Sixth Amendment and emphasized that “line-drawing . . . ‘cannot be wholly satisfactory.’”¹⁶ The Court concluded, however, that “lines must be drawn somewhere if the substance of the jury trial right is to be preserved” and that “conviction for a nonpetty offense by only five members of a six-person jury presents a . . . threat [to that preservation] and justifies . . . requiring verdicts rendered by six-person juries to be unanimous.”¹⁷ The Court “intimated no view” as to the constitutionality of nonunanimous juries with more than six but fewer than twelve members.¹⁸

In the 2020 Ramos decision, the Supreme Court overruled Apodaca, reaffirmed that the Sixth Amendment requires unanimity, and held that the Fourteenth Amendment incorporates the Sixth Amendment unanimity requirement against the states.¹⁹ The Court reasoned that “Apodaca was gravely mistaken” and that “Justice Powell refused to follow this Court’s incorporation precedents” when he determined that an alternative version of the jury trial right—one without a unanimity requirement—applied in state criminal trials.²⁰ In 2021, the Court held that Ramos did not apply retroactively to invalidate, on federal collateral review, convictions from non-unanimous verdicts that were already final at the time Ramos was decided.²¹

Amdt6.4.4.4 Two-Tier Trial Court Systems

The Court held in Ludwig v. Massachusetts that the provision of a jury trial on appeal, instead of at the first level of adjudication, does not violate the right to jury trial so long as the accused does not face any undue burdens in reaching the jury trial stage.¹ Ludwig upheld Massachusetts’s “two-tiered” system for trying certain non-petty crimes, which afforded the accused the possibility of a jury trial only after conviction in a non-jury trial at the first tier.² A defendant keen on a jury trial could expedite the procedure by “admitting sufficient findings of fact” at the first tier, thereby obviating most of the proceedings before the second-tier jury trial, which was de novo (i.e., not influenced by the outcome of the first tier trial).³ The Court held that this procedure did not violate what it called the “Fourteenth Amendment right to a jury trial.”⁴ Because the Massachusetts system undeniably provided the accused with the opportunity for a jury trial, the real question according to the Court was whether the provision of that opportunity only at the second tier “unconstitutionally burden[ed] the exercise of that right.”⁵ The Massachusetts system did not impose such an unconstitutional burden, the Court concluded, because the procedure for admitting factual findings at the first tier allowed the accused to mitigate the increased financial costs and “psychological and physical hardships” of two trials.⁶ The post-Duncan context also appeared to influence the decision: the Ludwig Court, like the Williams and Apodaca Courts, emphasized the need to afford the states flexibility in their manner of administering a jury trial system.⁷

Amdt6.4.5.1 A Jury Selected from a Representative Cross-Section of the Community

The Sixth Amendment guarantee of the right to a trial “by an impartial jury” applies in both state and federal court.¹ Other constitutional provisions, including the Due Process and Equal Protection Clauses of the Fourteenth Amendment, also bear upon impartiality. Before the Court extended the right to a jury trial to state courts in the 1968 case Duncan v. Louisiana,² the Court had established that, if a state chose to provide juries, due process required them to be impartial.³ In the post-Duncan era, the Supreme Court has continued to ground the right to an impartial jury in both the Sixth Amendment and due process.⁴ In addition, equal protection prohibits certain forms of discrimination in jury selection.⁵

Impartiality is a two-part requirement: the jury must be selected from a pool that represents a fair cross-section of the community⁶ and the jurors must be unbiased.⁷ First, “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”⁸ This “fair cross-section” requirement applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves.⁹ Describing the test for whether a prima facie violation of the fair-cross-section requirement had occurred, the Supreme Court stated:

In order to establish a prima facie violation of the fair-cross-section requirement, the

defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in

the community; (2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process.¹⁰

The defendant may bring a challenge under this test even if he or she does not belong to the excluded group.¹¹ Once the defendant demonstrates a prima facie violation, the government faces a formidable burden: the jury selection process may be sustained under the Sixth Amendment only if those aspects of the process that result in the disproportionate exclusion of a distinctive group, such as exemption criteria, “manifestly and primarily” advance a “significant state interest.”¹² Applying these standards, the Court invalidated a state selection system granting women an automatic exemption from jury service upon request.¹³ In an earlier case, it voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service.¹⁴

Amdt6.4.5.2 Jury Free from Bias

In addition to requiring that a petit jury be selected from a representative cross section of the community,¹ the Supreme Court has interpreted the Sixth Amendment to require assurance that the jurors chosen are unbiased—that is, the jurors must be willing to decide the case on the basis of the evidence presented.² The Court has held that absent a showing of actual bias, a juror’s employment by the government that is prosecuting the case does not require disqualification for implicit bias.³ By extension, absent a showing of actual bias, a federal petit jury may consist entirely of federal government employees without offending the right to an impartial jury.⁴ A violation of a defendant’s right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.⁵ Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and require judicial inquiry.⁶ Similarly, a trial court should not condone private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof.⁷ When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.⁸ Subjecting a defendant to trial in an atmosphere of actual or threatened mob domination also violates the right to an impartial jury.⁹

There are limits on the extent to which an inquiry can be made into whether a criminal defendant’s right to a jury trial has been denied by a biased jury. The federal rules of evidence¹⁰ and the vast majority of the states¹¹ forbid the “impeachment” or questioning of a verdict by inquiring into the internal deliberations of the jury—a rule of evidence that originated in English common law.¹² This “no impeachment” rule, which aims to promote “full and vigorous discussion” by jurors and to preserve the “stability” of jury verdicts, has limited the ability of criminal defendants to argue in post-conviction proceedings that a jury’s internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.¹³ Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the “gravest and most important cases.”¹⁴ As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.¹⁵ In the Court’s view, three safeguards—(1) the voir dire (jury selection) process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict—adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.¹⁶

In Pena-Rodriguez v. Colorado, the Court for the first time recognized a Sixth Amendment exception to the no impeachment rule.¹⁷ In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.¹⁸ The Court agreed, concluding that where a juror makes a “clear statement” indicating that he relied on “racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way . . . . ”¹⁹ In so holding, the Court emphasized the “imperative to purge racial prejudice from the administration of justice” that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.²⁰ Contrasting the instant case from earlier rulings that involved “anomalous behavior from a single jury—or juror—gone off course,”²¹ the Court noted that racial bias in the judicial system was a “familiar and recurring evil”²² that required the judiciary to prevent “systemic injury to the administration of justice.”²³ Moreover, the Court emphasized “pragmatic” rationales for its holding, noting that other checks on jury bias would be unlikely to reveal racial bias.²⁴

Amdt6.4.5.3 Death Penalty and Requirement of Impartial Jury

Inquiries into jury bias have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois,¹ the Court held that the exclusion in capital cases of jurors conscientiously opposed to capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. The Supreme Court stated: “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.”² A jury, the Court further wrote, must “express the conscience of the community on the ultimate question of life or death,” and the automatic exclusion of all with generalized objections to the death penalty “stacked the deck” and made of the jury a tribunal “organized to return a verdict of death.”³ The Court has also held that a court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.⁴

In Wainwright v. Witt, the Court held that the proper standard for exclusion is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’”⁵ Thus, to be excluded, a juror need not indicate that he would “automatic[ally]” vote against the death penalty, nor need his “bias be proved with ‘unmistakable clarity.’”⁶ Instead, a juror may be excused for cause “where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.”⁷ Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.⁸ It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that “it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.”⁹ Moreover, the Court noted, the state has an “entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case,” and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.¹⁰ For the same reasons, the Court has held that there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a “death qualified” jury.¹¹

In Uttecht v. Brown,¹² the Court summed up four principles that it derived from Witherspoon and Witt:

First a criminal defendant has the right to an impartial jury drawn from a venire that

has not been tilted in favor of capital punishment by selective prosecutorial challenges

for cause. Second, the State has a strong interest in having jurors who are able to apply

capital punishment within the framework state law prescribes. Third, to balance these

interests, a juror who is substantially impaired in his or her ability to impose the death

penalty under the state-law framework can be excused for cause; but if the juror is not

substantially impaired, removal for cause is impermissible. Fourth, in determining

whether the removal of a potential juror would vindicate the State’s interest without

violating the defendant’s right, the trial court makes a judgment based in part on the

demeanor of the juror, a judgment owed deference by reviewing courts.¹³

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion is not subject to harmless error analysis.¹⁴ However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.¹⁵ The relevant inquiry “must focus . . . on the jurors who ultimately sat,” the Court declared, declining to extend the rule from cases concerning the erroneous exclusion of jurors opposed to the death penalty that the focus instead should be on “‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’”¹⁶

Amdt6.4.5.4 Voir Dire and Peremptory Challenges

It is the function of voir dire to give the defense and the prosecution the opportunity to inquire into, or have the trial judge inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors.¹ Not every opinion which a juror may entertain about a case necessarily disqualifies him.² The judge must determine “whether the nature and strength of the opinion . . . raise the presumption of partiality.”³ It suffices for the judge to question potential jurors about their ability to put aside what they had heard or read about the case, listen to the evidence with an open mind, and render an impartial verdict; the judge’s refusal to go further and question jurors about the contents of news reports to which they had been exposed does not violate the right to an impartial jury.⁴

Under some circumstances, the Constitution may require the trial court to ask jurors whether they harbor racial bias, although the Supreme Court has sometimes grounded this requirement in “the essential fairness required by the Due Process Clause of the Fourteenth Amendment” rather than in the right to an impartial jury specifically.⁵ Thus, in a situation in which a Black defendant alleged that he was being prosecuted on false charges because of his civil rights activities, the Court held that due process required the trial court to ask prospective jurors about racial prejudice. A similar rule applies in some capital trials, where the risk of racial prejudice “is especially serious in light of the complete finality of the death sentence.”⁶ The right to an impartial jury entitles a defendant accused of an interracial capital offense to have prospective jurors informed of the victim’s race and questioned as to racial bias.⁷ But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are merely that the defendant is Black and the victim White in a non-capital case, the Constitution is satisfied by a more generalized but thorough inquiry into impartiality.⁸

Although the government is not constitutionally obligated to allow peremptory challenges,⁹ criminal trials typically provide for a system of peremptory challenges in which both prosecution and defense may, without stating any reason, excuse a certain number of prospective jurors.¹⁰ Although racially discriminatory use of peremptory challenges violates the Equal Protection Clause under the standard of proof set forth in Batson v. Kentucky,¹¹ it does not violate the Sixth Amendment, the Court ruled in Holland v. Illinois.¹² The Sixth Amendment “no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.”¹³ To rule otherwise, the Court reasoned, “would cripple the device of peremptory challenge” and thereby undermine the Amendment’s goal of “impartiality with respect to both contestants.”¹⁴

Amdt6.4.6.1 Historical Background on Local Jury Requirement

Article III, § 2 requires that federal criminal cases be tried by jury in the state in which the offense was committed,¹ but much criticism arose over the absence of any guarantee in the original Constitution that the jury be drawn from the “vicinage” or neighborhood of the crime.² James Madison’s efforts to write into the Bill of Rights an express vicinage provision were rebuffed by the Senate, and the present language was adopted as a compromise.³

Amdt6.4.6.2 Local Juries and Vicinage Requirement

To date, the Supreme Court has applied the Sixth Amendment right to a trial before a jury of “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”—known as the vicinage requirement¹—in federal prosecutions only.² The Court has not considered whether the requirement applies to state-level prosecutions via the Due Process Clause of the Fourteenth Amendment.³

Under the vicinage requirement, the “location of the commission of the criminal acts” determines the propriety of the trial venue.⁴ The defendant cannot be tried in a federal district if the charged offense was not committed there.⁵ Thus, a defendant could not be tried in Missouri for money-laundering when the financial transactions that constituted the charged offenses occurred entirely in Florida.⁶ Although the drug trafficking activity that generated the illicit funds occurred in Missouri, the defendant was charged only in connection with the money laundering, and venue was therefore proper only in Florida.⁷

If the charged criminal acts occur in multiple districts, the trial may occur in any one of those districts.⁸ In a prosecution for conspiracy, the accused may be tried in the district where the conspiracy was formed⁹ or, more broadly, in any district where the accused or a co-conspirator carried out an overt act.¹⁰ The offense of obtaining transportation of property in interstate commerce at less than the carrier’s published rates may be tried in any district through which the forbidden transportation is conducted.¹¹ Similarly, where an offense consists of sending illicit material through the mail, the Sixth Amendment permits the trial to take place in any district through which the material passes, although for policy reasons Congress may limit this range of permissible venues by statute.¹²

The Sixth Amendment does not entitle the accused to a preliminary hearing before being removed for trial to the federal district in which the charged offenses are alleged to have occurred.¹³ The assignment of a district judge from one district to another, pursuant to statute, does not violate the vicinage requirement—that is, such assignment does not create a new judicial district whose boundaries are undefined or subject the accused to trial in a district not established when the offense with which he is charged was committed.¹⁴

For offenses against federal laws not committed within any state, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.¹⁵ The place of trial may be designated by statute after the offense has been committed.¹⁶

Amdt6.4.7 Notice of Accusation

The Sixth Amendment right to be “informed of the nature and cause of the accusation” guarantees criminal defendants “adequate notice of the charges against [them].”¹ To satisfy the Sixth Amendment requirement, the notice that the government provides must be specific enough to enable the defendant to prepare a defense and to protect himself or herself after judgment against a subsequent prosecution on the same charge.² Thus, in the prosecution of a witness for the crime of refusing to answer the questions of a congressional subcommittee about a topic that the subcommittee was investigating, the government violated the Sixth Amendment right by failing to identify the topic of the investigation.³ Because criminal liability could attach only if the questions that the witness refused to answer related to the topic of the congressional investigation, the Court reasoned that the prosecution’s failure to identify the topic left the “chief issue undefined” and therefore violated the defendant’s right to know “the nature of the accusation against him.”⁴

The Court has cautioned, however, that its limited precedents interpreting this constitutional provision “stand for nothing more than the general proposition” that the government must notify the defendant of the nature of the charges.⁵ The Court has not established “specific rule[s]” about how this notice requirement applies in practice.⁶ For example, it has not resolved whether a prosecutorial decision to switch theories of liability towards the end of trial vitiates otherwise adequate notice provided in the pleadings.⁷ Federal and state rules of criminal procedure contain more detailed notice requirements.⁸ The Sixth Amendment right to notice of accusation applies to the states via the Due Process Clause of the Fourteenth Amendment.⁹