The Informed of Accusation (Arraignment) Clause

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

—Judge Michael B. Brennan

Introduction

The Sixth Amendment protects the right of an accused “to be informed of the nature and cause of the accusation” against him so that he can receive a fair trial. This guarantee is intended to ensure (1) that an individual suspected of committing a crime receives proper notice of the specifics of the charges against him so that he can prepare a defense and (2) that the court can evaluate the legal sufficiency of the charges in an indictment during a court hearing. This provision is known as the Arraignment Clause because under modern procedure, the accused is informed during an arraignment proceeding.

History Before 1787

An accused’s right to be informed of the charges brought by an accuser derives from early English common law with historical underpinnings before Magna Carta. This right is also consistent with Chapter 39 of Magna Carta, which ensured that a person could not be imprisoned without a specified accusation in an indictment or otherwise in accordance with the common law.¹ The privilege against self-incrimination was accompanied from its inception by a corollary right to formal notice of an accusation.² The privilege and its corollary caused many political, religious, and legal battles, including disputes about interrogations based on the “oath ex officio.”³ During such questioning, the accused was often not informed of his accuser, and the specific charges were not revealed before the interrogation began.⁴

The common-law courts responded to the oath ex officio with new procedures. The accused had to be provided with a substantiated accusation based on specific charges.⁵ Further, the accusation could be initiated either by an individual complaint, called an appeal, or by an accusing jury.⁶ This latter institution was a predecessor of the grand jury. Before an answer was required, an accused was entitled to know the specific accusation, its details, and who was making it.⁷

In 1351 or 1352, Parliament enacted a statute that paid respect to Chapter 39 of Magna Carta.⁸ The law provided that the king would not proceed against a free citizen without a specific accusation brought in accord with the common law.⁹ In 1533, Parliament guaranteed that the people could not be interrogated unless the government provided a substantiated formal accusation.¹⁰

Sir William Blackstone referenced a statute passed under King Henry V in 1418. Under this law, all indictments must set forth the name and town or county to identify an offender as well as the time and place of the offense. The indictment “must also be set forth with clearness and certainty: and in some crimes particular words of art must be used.”¹¹

The right to be informed of an accusation traveled across the Atlantic. The Virginia Declaration of Rights of 1776, written by George Mason, guaranteed “[t]hat in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation. . . .”¹² Several colonies copied that language. The same phrase was included in the Pennsylvania constitution of 1776 and the Vermont constitution of 1777.¹³ The Massachusetts constitution of 1780 similarly stated that “[n]o subject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, described to him. . . .”¹⁴ New Hampshire’s constitution adopted the Massachusetts formulation in 1783.¹⁵

The Constitutional Convention and Ratification Debates

The Philadelphia Convention did not include a right to be informed of accusations. Several states subsequently proposed that this guarantee be added as a constitutional amendment. In 1788, for example, the North Carolina ratification convention proposed a Declaration of Rights with the same language that was used in the Virginia Declaration of Rights: “a man hath a right to demand the cause and nature of his accusation.”¹⁶ Similar proposals were put forward by the ratification conventions in Virginia (1788), Rhode Island (1790), and Pennsylvania (1787).¹⁷

Adoption of the Sixth Amendment

During the First Congress, Representative James Madison of Virginia drafted what became the right to be informed of the nature and cause of an accusation. The text he submitted on June 8, 1789, was identical to the language in the Sixth Amendment’s Arraignment Clause.¹⁸ This version was adopted by the House and Senate without recorded comment.¹⁹ The guarantee was adopted as part of the Sixth Amendment.

Judicial Precedent

The earliest decision on this subject by the U.S. Supreme Court is United States v. Mills (1833). Without explicit reference to the Sixth Amendment, the Court held that “the offense must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged.”²⁰

The first Supreme Court decision on this topic that was grounded in the Sixth Amendment is United States v. Cruikshank (1876).²¹ The accused were charged with interfering with the constitutional rights of other citizens, but the indictment used generic terms—“several rights and privileges granted to them by the constitution.”²² This text did not provide adequate notice to the defendants.²³ Because the indictment was insufficiently certain and precise, the accused were not properly informed of the nature and cause of the charges against them.²⁴

Cruikshank identified three purposes of the charging instrument: “to furnish the accused with such a description of the charge against him as will enable him to make his defence,” to permit him to “avail himself of his conviction or acquittal for protection against a further prosecution for the same cause,” and to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction, if one should be had.”²⁵

In Rosen v. United States (1896), a defendant was indicted for sending obscene material by mail, but the charges did not describe each allegedly obscene image.²⁶ The Court, drawing on the purposes identified in Cruikshank, held that no constitutional violation had occurred.²⁷ Specific descriptions of the materials were not critical to the defense, and there was no indication that either the defendant or the trial court failed to understand the charges.²⁸

In Cole v. Arkansas (1948), four defendants were tried and convicted of violating one section of a statute.²⁹ The state supreme court affirmed their convictions even though the evidence showed that the defendants had violated a different provision of the law.³⁰ However, the Supreme Court reversed.³¹ At this point, the Arraignment Clause had not yet been incorporated and applied to the states, so the Court relied on the procedural protections of the Due Process Clause of the Fourteenth Amendment. The majority opinion ruled that the defendants’ right to know all the charges against them and put on a complete defense had been violated: “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.”³² In Herring v. New York (1975), the Court cited Cole in concluding that the Sixth Amendment, including its notice provision, has been “extended to a defendant in a state criminal prosecution through the Fourteenth Amendment.”³³

In Russell v. United States (1962), the defendant refused to answer questions put to him by the subcommittee.³⁴ The Court held that the indictment was insufficient because it failed to identify the subject of a congressional subcommittee’s inquiry. Russell, in establishing basic notice requirements, viewed the notice protections in nineteenth-century case law and applied the same principles. The Court stated that notice provides two well-known functions: It “apprises the defendant of what he must be prepared to meet” and protects against a second prosecution for the same offense.³⁵ The Court also reviewed several foundational principles in establishing what constitutes sufficient notice, such as specificity in the offense; reasonable certainty as to the charge, including all of the charge’s required elements; and information about the charged facts and circumstances.³⁶

Modern Practice

The Sixth Amendment’s requirement that the accused must be informed of the accusation is typically accomplished through a charging document, an arraignment on the charge, or both. In the federal system, an indictment must include the elements of the offense charged, fairly inform an accused of the charge against which he will have to defend himself, and allow an accused to plead guilty or not guilty to bar a future prosecution for the same offense.³⁷ The Sixth Amendment does not require that the accused receive a copy of the indictment,³⁸ but in practice, that most often occurs. The notice and specificity requirements are usually accomplished by reading the charges to an accused at an arraignment hearing or by specifying the charges in an indictment. The grand jury right has not been incorporated against the states,³⁹ but in states where indictments are not required, defendants can be informed of the accusations through a criminal information or complaint. (See Essay No. 168.)

Under the Federal Rules of Criminal Procedure, the notice and specificity requirement has taken on a more ministerial character. Rule 7(c) describes the nature and contents of a charging document. Under Rule 7(f) a defendant may be entitled to a bill of particulars. Such a bill would help an accused obtain information when a charging instrument omits factual details,⁴⁰ both to prepare a defense and to avoid surprise at trial. Rule 10 governs arraignments in general, including a defendant’s right to waive an appearance. Rule 43(a) specifies the requirements for when a defendant must be present. State criminal rules and procedures have similar requirements,⁴¹ but states’ rules vary and use the term “arraignment” to refer to a variety of proceedings.⁴²

Open Questions

• Does the Sixth Amendment’s Arraignment Clause have stronger roots in the Constitution’s text than do the procedural due process guarantees of an accused’s right to notice of criminal charges?⁴³
• Does the Constitution require an arraignment hearing? Garland v. Washington (1914) might be read as holding either that the state’s failure to hold an arraignment was harmless error or that the Constitution imposes no requirement of an arraignment.⁴⁴ The text of the clause requires only that the defendant must be informed of the nature of the charges in some way, which could be accomplished by the charging document and not necessarily an arraignment hearing. The lower courts have held that such a hearing is not required by the Fifth Amendment’s Due Process Clause.⁴⁵
• Do Rules 7 and 10 of the Federal Rules of Criminal Procedure fully encompass the notice and specificity requirements of the Sixth Amendment’s Informed of Accusation Clause?

1. 1 Sir Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I, 173 n.3 (2d ed. 1903)). ↩︎
2. Laurence A. Benner, Requiem for Miranda: The Rehnquist Court’s Voluntariness Doctrine in Historical Perspective, 67 Wash. U. L. Q. 59, 64 (1989). ↩︎
3. E.M. Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, at 1 (1949). ↩︎
4. Benner, supra at 70. ↩︎
5. Id. at 71. ↩︎
6. 1 Pollock & Maitland, supra at 151–52; 2 Pollock & Maitland supra at 466, 642. ↩︎
7. Benner, supra at 72. ↩︎
8. 1 Statutes of the Realm 319, 321 (25 Edward III, c. 4, 1351–1352). ↩︎
9. Id. ↩︎
10. 3 Statutes of the Realm 454, 455 (25 Henry VIII, c. 14, 1533). ↩︎
11. 4 Blackstone 306. ↩︎
12. Va. Decl. of Rts. of 1776, § 8. ↩︎
13. Pa. Const. of 1790, art. 1, § 9; Vt. Const. of 1777, ch. 1, § 10. ↩︎
14. Mass. Const. of 1780, art. XII. ↩︎
15. N.H. Const. of 1783, art. 15. ↩︎
16. 4 Elliot’s 243. ↩︎
17. 3 Elliot’s 658; 2 Documentary History of the Constitution of the United States of America 354–55, 365 (1894). ↩︎
18. 1 Annals of Cong. 452 (1789). ↩︎
19. Id. at 86, 809. ↩︎
20. 32 U.S. 138, 142 (1833). ↩︎
21. 92 U.S. 542 (1876). ↩︎
22. Id. at 557. ↩︎
23. Id. ↩︎
24. Id. at 559. ↩︎
25. Id. at 558. ↩︎
26. 161 U.S. 29, 31–32 (1896). ↩︎
27. Id. at 34. ↩︎
28. Id. at 41. ↩︎
29. 333 U.S. 196, 197–98 (1948). ↩︎
30. Id. at 197–98. ↩︎
31. Id. at 198. ↩︎
32. Id. at 201. ↩︎
33. 422 U.S. 853, 857 & n.7 (1975). ↩︎
34. 369 U.S. 749, 751 & n.2, 760 (1962). ↩︎
35. Id. at 763, 764. ↩︎
36. Id. at 764–65. ↩︎
37. Hamling v. U.S., 418 U.S. 87, 117–18 (1974). ↩︎
38. United States v. Duzee, 140 U.S. 169, 173 (1891). ↩︎
39. McDonald v. City of Chicago, 561 U.S. 742, 765 & n.13 (2010). ↩︎
40. Will v. United States, 389 U.S. 90, 98, 101 (1967). ↩︎
41. 5 Wayne R. LaFave, et al. Criminal Procedure § 19.2(c) (4th ed. 2020). ↩︎
42. Id. at § 21.4(a). ↩︎
43. Lopez v. Smith, 574 U.S. 1, 4–6 (2014); 333 U.S. at 201. ↩︎
44. 232 U.S. 642, 645 (1914). ↩︎
45. Valenzuela-Gonzalez v. U.S. District Court for D. Ariz., 915 F.2d 1276–80 (9th Cir. 1990); United States v. Coffman, 567 F.3d 960, 961 (10th Cir. 1977). ↩︎