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Originalism as the Defense Attorney's Friend: Expanding Sixth Amendment Rights
By Randolph N. Jonakait
The Supreme Court has handed defense attorneys a tool that can be used to expand Sixth Amendment rights. That mechanism is the present Court’s mandate that Sixth Amendment rights must conform to the trial rights that existed when the Bill of Rights was adopted.
Defense counsel can use this originalist methodology to challenge existing restrictions on Sixth Amendment rights, for many of the precedents authorizing the restrictions cannot be justified by originalism. Possible examples include decisions that have limited the size of juries, rights of confrontation, compulsory process, public trials, and choice of counsel. Perhaps most notably, the doctrine that juries do not have the authority to determine the law can be challenged. A revolution enlarging Sixth Amendment rights could be in the offing. Before turning to such possibilities, however, a summary is in order of the two lines of cases indicating that the originalist method now controls Sixth Amendment interpretation.
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