Arraignment Clause

The Heritage Guide to the Constitution

Arraignment Clause

Amendment VI

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

The Constitution requires that an accused criminal defendant be informed of the nature of the charges against him. As Justice Hugo L. Black wrote in Cole v. Arkansas (1948):

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.

The requirement of fair notice derives from early English common law, it was generally recognized 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 originated at least as far back as the twelfth century. English 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. In twelfth century England, however, the Church administered a separate judicial system, one based on an inquisitorial process derived from Roman law. 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, seeking to restrict the power of the ecclesiastical courts, King Henry II issued the Constitutions of Clarendon, which required Church courts to identify a definite accusation before calling a layman to answer a charge. The development of an accusatorial system based on specific charges continued with the Magna Carta in 1215, only to founder 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 subject 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 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 grounds 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.

In 1641, on the eve of the English Civil War, the Long Parliament passed the Act for the Abolition of the Court of Star Chamber, which provided:

[N]one shall be taken by petition or suggestion made to the King or to his Council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner or by process made by writ original at the common law. . . .

It is unsurprising, then, that the American legal tradition, born of the English common law and informed by the history of persecution that motivated many religious dissenters 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 Arraignment Clause has enduring practical 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. If arraignment is unreasonably delayed, that delay may even form a basis for suppressing a defendant’s pre-arraignment confession. Corley v. United States (2009). 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.

Paul Rosenzweig

Founder, Red Branch Law & Consulting, PLLC

Laurence A. Brenner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 Wash. U. L.Q. 59 (1988)

Leonard W. Levy, The Origins of the Fifth Amendment (1968)

Frederick Pollock & Frederic William Maitland, The History of English Law (2d ed. 1951)

James Fitzgerald Stephen, A History of the Criminal Law of England (1883)

United States v. Cruikshank, 92 U.S. 542 (1876)

Seven Cases of Eckman’s Alternative v. United States, 239 U.S. 510 (1916)

Hagner v. United States, 285 U.S. 427 (1932)

Cole v. Arkansas, 333 U.S. 196 (1948)

Hamling v. United States, 419 U.S. 885 (1974)

Corley v. United States, 556 U.S. 303 (2009)