Arraignment Clause

In all criminal prosecutions, the accused shall enjoy the right to informed of the nature and cause of the accusation....

Amendment VI

The Constitution requires that an accused criminal defendant be informed of the nature of the charges against him. As Justice Hugo L. Black has written:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. Cole v. Arkansas (1948).

The requirement of fair notice derives from early English common law; it was a matter of well-accepted agreement at the time of the adoption of the Constitution; and it is, today, largely a ministerial matter of routine criminal procedure.

The accused's right to be informed of the charges against him traces its origin at least as far back as twelfth-century England. Anglo-Saxon law required a precise and properly substantiated accusation, initiated either by individual complaint (called an appeal) or by an accusing jury (the predecessor of our grand jury), and specifying particular charges. However, at that time England had a dual judicial system, and, in contrast to the accusatorial system of the common law, the ecclesiastical judicial system used an inquisitorial process. For example, one could be called to answer charges of heresy upon the mere unsworn suggestion of "ill fame" without the need for greater specificity.

In 1164, King Henry II began a process of ecclesiastical reform, requiring the ecclesiastical courts to identify a definite accusation before calling the accused to answer. The Magna Carta (1215) incorporated the trend towards an accusatorial system requiring specific charges:

none shall be taken by petition or suggestion made to our lord the King, or to his Council, unless it be by indictment or presentation of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law.

The effort to force the ecclesiastical courts to adhere to the common-law rule of precision in accusation foundered in the sixteenth century, as the inquisitorial system of justice returned to prominence. The High Commission and Star Chamber revived the practice of questioning a citizen without specifying the nature of the accusation against him. As a result, the practice of refusing to inform one being questioned of the nature of the charges against him became intertwined with the related right (now embodied in the Fifth Amendment) against self-incrimination (which the English courts of this era applied only prior to the presentation of formal charges). Those called to answer in the Star Chamber refused to do so on the dual ground that they did not know what they were accused of and that they could not be compelled to answer, thereby condemning themselves from their own mouths.

Thus in 1637, when Freeborn John Lilburne, a Puritan, was examined by the Star Chamber on unspecified charges, his response was twofold:

I am not willing to answer you to any more of these questions, because I see you go about by this examination to ensnare me; for, seeing the things for which I am imprisoned cannot be proved against me, you will get other matter out of my examination; and therefore, if you will not ask me about the thing laid to my charge, I shall answer no more.

It is unsurprising, then, that the American legal tradition, born of the English common law and informed by the history of religious persecution that motivated many Englishmen to emigrate, reflects an early and consistent adoption of the common-law accusatorial requirement for specificity. Requirements that an accused be informed of the nature of the charges against him can be found, for example, in the Virginia Declaration of Rights and in the constitutions of many (though not all) of the original states.

When the Bill of Rights was drafted in 1789, the right to be informed of the nature and cause of the accusation was included in James Madison's draft and, without recorded comment, became a part of the Sixth Amendment.

Initially, the function of the constitutional requirement was to provide the accused with adequate notice of the charges against him so that he could prepare a defense. As the concept of double jeopardy developed, the notice requirement came to serve the secondary purpose of allowing the accused to plead a prior acquittal as a bar to a second prosecution for the "same offense." It also came to serve as a means of informing the court of the nature of the charges so that the court might determine their legal sufficiency. One illustration of the early enforcement of this requirement was United States v. Cruikshank (1876), where the Supreme Court concluded that an indictment charging a defendant with having hindered certain citizens in their "free exercise and enjoyment...of the several rights and privileges granted and secured to them by the constitution," was insufficiently specific to satisfy the constitutional standard.

In contemporary American law, the notice and specificity requirement has taken on a largely ministerial character. Although indictments are required to state clearly the statutory offense being charged, the courts routinely refuse to enforce the requirement by requiring hypertechnical specificity. Generally, a charging instrument will be sufficient if it recites the offense in the terms of the statute allegedly violated (including all the elements of the crime) and identifies the date of the offense and the individuals alleged to have violated the law. Hamling v. United States (1974).

Thus, though no longer a practical basis for a defendant's challenge to his indictment, the clause continues to have enduring practical day-to-day effects on the administration of justice. It is the constitutional foundation, for example, of the continuing requirement that every defendant be arraigned on charges and have the indictment read to him; it lies behind every defendant's request for a bill of particulars, providing more specification for the charges; and it is the underlying basis for every challenge to the sufficiency of an indictment as vague or containing multiple charges in a single count. Thus, the constitutional requirement to be "informed of the nature and cause of the accusation" has become internalized by the judicial system and is interwoven into the fabric of daily procedure.

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Paul Rosenzweig
Visiting Fellow, The Heritage Foundation
Red Branch Law & Consulting, PLLC