PARTNERSHIP FICTITIOUS NAME CERTIFICATE SECRETARY OF STATE SFN 7006 06–2006 FOR OFFICE USE ONLY ID # WO # Expiration Date SEE REVERSE SIDE FOR FEES, FILING AND MAILING INSTRUCTIONS Gene
Trang 1insofar as material, may be considered in connection with other circumstances Gener-ally, however, such evidence is deemed too speculative in nature to serve as the sole basis for a presumption of survivorship
FURTHER READINGS Johnson, J Rodney 1994 “The New Uniform Simultaneous Death Act ” Probate & Property 8 (May-June).
Waggoner, Lawrence W 1994 “The Revised Uniform Probate Code ” Trusts & Estates (May 1).
CROSS REFERENCES Death and Dying; Estate and Gift Taxes.
vSINCLAIR, UPTON BEALL Upton Beall Sinclair was a famous American writer and essayist whose book The Jungle, an exposé of Chicago’s meatpacking industry, shocked the nation and led to the passage of the Pure Food and Drug Act in 1906
Sinclair was born September 20, 1878, to a prominent but financially troubled family in Baltimore, Maryland Sinclair’s father was a liquor salesman who was also an alcoholic His mother, a teetotaler, came from a wealthy background In 1888, the Sinclair family moved
to New York Sinclair’s father sold hats but spent his earnings on alcohol Sinclair, who became a teetotaler like his mother, moved between two different financial worlds—the relative life of poverty with his father and mother and the affluence he experienced when visiting his mother’s well-to-do parents He later stated that experiencing the two extremes helped make him
a socialist
Sinclair began to write “dime novels”
(books of pulp fiction that sold for 10 cents) when he was a teenager At age 14 he attended New York City College, financing his education
by writing for newspapers and magazines In
1897 Sinclair enrolled at Columbia University
He continued to write prodigiously, a habit that became lifelong By the time he died, Sinclair had published close to one hundred books
In 1901 Sinclair released his first book, Springtime and Harvest, later republished as King Midas Around the same time, he became involved in the socialist movement He was an avid reader of socialist classics and Appeal to Reason, a socialist-populist journal Socialists maintain that inequalities in the distribution of wealth are best solved by either direct state ownership of key industries or through regula-tion of private business In 1905 Sinclair joined with authors Jack London and Florence Kelley and labor attorneyCLARENCE DARROWto establish the Intercollegiate Socialist Society
During this period Sinclair also became interested in the works of such investigative journalists as Lincoln Steffens and Ida Tarbell, who publicly exposed corruption in U.S government and industry This type of investi-gative reporting came to be known as “muck-raking,” thanks in part to Sinclair In 1904 the editor of Appeal to Reason commissioned him to write a novel about the immigrants who worked
in the meat packing industry After seven weeks
of research, Sinclair produced what would be his sixth book, The Jungle, a novel about a young Lithuanian immigrant who finds work in the stockyards of Chicago Sinclair’s frank portrayal of the unsanitary and miserable working conditions of those who labored in the meat packing industry was serialized in
1905, where it began to create a furor
Unable to find a publisher for his book, Sinclair, after six rejections, published the novel himself He took out an ad in Appeal to Reason,
1875
❖
1878 Born,
Baltimore, Md.
1901 Released first book,
Springtime and Harvest
◆
1905 Helped establish Intercollegiate Socialist Society
1934 Unsuccessful run for governorship of California
1967 Invited by President Johnson
to witness signing of Wholesome Meat Act
◆
1968 Died, Bound Brook, N.J.
❖
◆
◆
1906 Pure Food and Drug Act passed; Meat Inspection Act passed
1906 The Jungle
published, exposed unsavory meatpacking industry practices
1914-18 World War I
1939-45 World War II
IAIMED AT THE
PUBLIC’S HEART,AND
BY ACCIDENTIHIT IT
IN THE STOMACH
—U PTON S INCLAIR
208 SINCLAIR, UPTON BEALL
Trang 2and received 972 advance orders When the
publisher Doubleday heard the numbers, the
company took on the book The Jungle was
published in 1906 and immediately sold more
than 150,000 copies Over the next few years the
book was translated into 17 languages and
became an international best seller
Horrified at the description of the filthy
conditions in which the meat packers worked,
and even more dismayed at the offal and other
repellant ingredients that were part of the meats
they were consuming, the American public
demanded immediate and widespread reform
PresidentTHEODORE ROOSEVELTmet with Sinclair
at the White House and launched an
investiga-tion into the practices of the meat packing
industry Although the beef industry and other
producers of consumable products, including
pharmaceutical companies, had vigorously
fought federal regulation of their industries,
Sinclair’s revelations helped turn the tide
Bowing to the swelling chorus of public
indignation, Congress passed thePURE FOOD AND
DRUG ACT OF1906, which prohibited foreign and
interstate commerce in adulterated or
fraudu-lently labeled food and drugs Under the new
law, such products could be seized and destroyed
and offenders faced fines and prison sentences
Congress also passed the Meat Inspection Act of
1906, which attempted to regulate the inspection
of the slaughtering and processing of animals
sold for human consumption
Sinclair put his newfound wealth into a
cooperative living experiment he established in
Englewood, New Jersey When a fire destroyed
the commune in 1907, Sinclair was financially
unable to rebuild it He followed The Jungle
with a number of other muckraking novels,
including King Coal (1917), Oil! (1927), and
Boston (1928) None, however, achieved the
same popularity
Sinclair eventually moved to California where
he became actively involved in politics He ran
unsuccessfully for public office on the Socialist
ticket and organized a socialist reform movement
known as End Poverty in California (EPIC) In
1934, he ran for governor of California on the
Democratic ticket but was defeated by
Republi-canINCUMBENTFrank Merriam
Sinclair returned to writing in the 1940s,
producing his famous Lanny Budd series, which
is composed of 11 novels that deal with
American politics from about 1913 until 1953
The third book in the series, Dragon’s Teeth (1942), recounts the rise of Nazism It received the Pulitzer Prize for fiction in 1943, the only major literary award given to Sinclair
In the 1950s Sinclair moved to Arizona with his second wife, Mary Craig Kimbrough, for health reasons When Craig died in 1961, the two had been married almost 50 years
Sinclair remarried at the age of 83 He spent his later years writing and occasionally lecturing In
1962 he released his autobiography In 1967,
a year before his death, Sinclair was invited to the White House by President LYNDON JOHNSON
to witness the signing of the Wholesome Meat Act of 1967, which expanded the earlier meat inspection act of 1906 In 1968 the socialist crusader, who proved that one man can bring about reform, died in his sleep on November
25, 1968, in Bound Brook, New Jersey
FURTHER READINGS Ivan, Scott 1996 Upton Sinclair: The Forgotten Socialist.
Lanham, Md.: Univ Press of America.
Mitchell, Greg 1991.Campaign of the Century: Upton Sinclair’s E.P.I.C Race for Governor of California New York: Random House.
SINE DIE [Latin, Without day.] Without day; without assigning a day for a further meeting or hearing
A legislative body adjourns sine die when it adjourns without appointing a day on which to appear or assemble again
SINE QUA NON [Latin, Without which not.] A description of a requisite or condition that is indispensable
In the law of TORTS, a causal connection exists between a particular act and an injury when the injury would not have arisen but for the act This is known as the but for rule or sine qua non rule
SINGLE NAME PAPER
A type of COMMERCIAL PAPER, such as a check or promissory note that has only one original signer
or more than one maker signing for the exact same purpose
A single name paper is distinguishable from
a suretyship where, for a certain sum, one individual cosigns to support another indivi-dual’s debt
Trang 3SINGLE NAME PARTNERSHIP
A business arrangement whereby two or more individuals, the partners, unite their skill, capital, and work in exchange for a proportional alloca-tion of the profits and losses incurred but who engage in business under one name rather than the names of all the partners
Although technically not a legal term, the phrase single name partnership describes the situation when a traditional partnership arran-gement deviates from the custom of using the surnames of all its partners (except for silent partners) to conduct its activities The partners select one name, whether it be the name of one partner, an acronym of their names, or a fictitious name This assumed name must be set out under the provision for the name in the partnership agreement A single name partner-ship is also known as an assumed or fictitious name partnership
Almost all states require by statute that such
a partnership file an assumed or fictitious name certificate with theSECRETARY OF STATE or other appropriate official In addition to the assumed name, the certificate sets out the full names and addresses of the individuals doing business under that name Some jurisdictions also man-date that a notice to file the certificate appear under the legal notice column in designated newspapers
The registration requirement is designed to provide the public with information about the persons with whom they choose to do business
or extend credit Failure to file an assumed or fictitious name partnership agreement might constitute a misdemeanor under state penal laws, resulting in a fine upon conviction
SINGLE PROPRIETORSHIP SeeSOLE PROPRIETORSHIP
SIT
To hold court or perform an act that is judicial in nature; to hold a session, such as of a court,GRAND JURY, or legislative body
SITUS [Latin, Situation; location.] The place where a particular event occurs or where particular property is situated It is relevant to issues of jurisdiction and local property tax as well as choice
of law and venue
The situs of a crime is the place where it was committed; the situs of a trust is the location where the trustee performs his or her duties of managing the trust In real PROPERTY LAW, the situs of land is its geographic location, which will determine the state and local laws affecting its use and sale
SIXTEENTH AMENDMENT The Sixteenth Amendment to the U.S Consti-tution reads:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard
to any census or enumeration
Congress passed the Sixteenth Amendment
to the U.S Constitution in 1909, and the states ratified it in 1913 The ratification of the amendment overturned an 1895 U.S Supreme Court decision that had ruled a 2 percent fede-ral flat tax on incomes over $4,000 uncons-titutional (Pollock v Farmer’s Loan & Trust Co.,
157 U.S 429, 15 S Ct 673, 39 L Ed 759) Article I of the Constitution states that“direct taxes shall be apportioned among the several states according to their respective num-bers.” By a 5–4 vote, the Court in Pollock held that the new income tax was a direct tax insofar
as it was based on incomes derived from land and, as such, had to be apportioned among the states Because the law did not provide for apportionment, it was unconstitutional The decision was unpopular and took the public by surprise because a federalINCOME TAX
levied during the U.S CIVIL WAR had not been struck down Critics contended that the conser-vative majority on the Pollock Court was seeking
to protect the economic elite Industrialization had led to the creation of enormous corporate profits and personal fortunes, which could not be taxed to help pay for escalating federal govern-ment services The DEMOCRATIC PARTY made the enactment of a CONSTITUTIONAL AMENDMENT a plank in its platform beginning in 1896 The language of the Sixteenth Amendment addressed the issue in Pollock concerning apportionment, repealing the limitation im-posed by Article I Soon after the amendment was ratified, Congress established a new per-sonal income tax with rates ranging from 1 to 7 percent on income in excess of $3,000 for a single individual
210 SINGLE NAME PARTNERSHIP
Trang 4Partnership Fictitious Name
A For new certificate for first
two partners $25.00
For each additional partner
(not to exceed $250) 3.00
B For fictitious name used by
a limited partnership or limited
liability partnership 25.00
C For amended certificate 25.00
2 This certificate is a
New registration with a five year duration.
Amended registration with a continuing duration.
PARTNERSHIP FICTITIOUS NAME CERTIFICATE
SECRETARY OF STATE
SFN 7006 (06–2006)
FOR OFFICE USE ONLY
ID #
WO #
Expiration Date
SEE REVERSE SIDE FOR FEES, FILING AND MAILING INSTRUCTIONS
General partnership LP
LLP LLLP
15 If a fictitious name is used by a limited partnership, limited liability partnership, or a limited liability 16 Federal ID #
limited partnership, the name of that partnership is:
17 Address of principal place of business (Street/RR, and PO Box if applicable, city, state, zip+4)
18 State of origin 9 Telephone # 10 Toll-free telephone #
11 The general partners, their Social Security/Federal ID #, and the addresses of their principal places of business (this section may be left blank when number 5
indicates the fictitious name is used by a limited partnership, or a limited liability limited partnership.)
FEDERAL ID # Street/RR PO Box City State Zip + 4
12 A brief description of the nature of business to be transacted in North Dakota
13 "I (we), and (the) above named general partner(s) have read the foregoing certificate, know the contents, and believe(s) the information provided is correct."
14 Name of person to contact about this application E-Mail Address: Daytime telephone #:
A sample form for a single (or fictitious) name partnership or business.
Trang 5Partnership Fictitious Name
[continued]
Every partnership transacting business in North Dakota under a fictitious name, or a name not showing the names of all the partners, must file a Fictitious Name
Certificate with the Secretary of State Whenever there is a change in the general partners who are members of a partnership transacting business in North Dakota under a fictitious name, an amended certificate must be filed When the fictitious name itself changes, the certificate on file must be canceled and a new
Fictitious Name Certificate must be filed.
Every limited partnership, every limited liability partnership, and every limited liability limited partnership transacting business in North Dakota under a name other than the legal name as registered with the Secretary of State, must file a Fictitious Name Certificate with the Secretary of State.
The following numbers correspond to the numbered sections on the front of this form.
1 (a) The fictitious name certificate filing fee is $25 if there are two partners If there are more than two partners, an additional fee of $3 per additional partner
must be paid However, the fee shall not exceed a total fee of $250.
(Checks must be payable to “Secretary of State” and must be for U.S negotiable funds Payment may also be made by credit card using VISA, Master Card,
or Discover.)
(b) The fictitious name certificate filing fee is $25 when the fictitious name is used by a limited partnership, a limited liability partnership, or a limited liability
limited partnership.
(c) The fee for an amended fictitious name certificate is $25.
2 Check whether this certificate is a new registration with the Secretary of State, or a certificate amending a previous registration.
A new registration has a duration of five years The duration of an amended registration is five years from the date of the original registration.
3 The fictitious name:
(a) May not contain the word “corporation,” “company,” “incorporated,” “limited liability company,” or “limited,” or an abbreviation of one of such words This does not preclude the word “limited” from being used in conjunction with the word “partnership”.
(b) Must include the words “limited partnership” or the abbreviation “L.P.” or “LP” if fictitious name is filed to be used by a limited partnership;
“limited liability partnership” or either of the abbreviations “L.L.P.” or “LLP” if used by a limited liability partnership; or “limited liability limited partnership” or the abbreviation “L.L.L.P.” or “LLLP” if the fictitious name is used by a limited liability limited partnership A foreign professional limited liability partnership may use a name required or authorized in the state of origin.
(c) May not be the same as, or deceptively similar to, any corporate name, limited liability company name, trade name, limited partnership name, limited liability partnership name, limited liability limited partnership name, or partnership fictitious name certificate, or a name in any other manner reserved with the
secretary of state (See North Dakota Century Code, Section 45-11-01)
If the fictitious name is the same as, or similar to a name registered, the partnership must obtain consent to use of name from the previously registered entity An original consent to use of name signed by a principal of the previously registered name must be filed with the fictitious name certificate and the fee of $10 A
form for consent to use of name is not prescribed by the Secretary of State.
The name on an amended fictitious name certificate must be identical to that as originally filed The name does not need to be researched for availability since the right to the name was secured with the original registration.
4 Distinguish whether the partnership using the fictitious name is a general or limited partnership, a limited liability partnership, or a limited liability limited
partnership.
5 If the fictitious name is being used by a limited partnership, a limited liability partnership, or a limited liability limited partnership, give the correct name as
registered with the North Dakota Secretary of State.
6 To properly maintain partnership records, the partnership’s Federal ID number is required Privacy: In accordance with N.D.C.C., Section 45-11-10, social
security or Federal ID numbers are not disclosed to the public They are used by the Secretary of State to maintain accurate fictitious name records Therefore, while voluntary disclosure is requested, failure to do so will not result in rejection of the registration.
7 A complete address of the principal place of business is required In this section, as well as all other sections requiring addresses on this certificate, an
address must include a street or rural address, a postal box number if applicable, and the city, state, and zip code plus 4.
8 Provide the state of organization if fictitious name is used by a limited partnership, a limited liability partnership, or a limited liability limited partnership.
9 The telephone number of the partnership’s principal place of business is requested in order to provide better service to a filing partnership.
10 Provide a toll-free telephone number if the partnership has one A toll-free number will expedite services to the partnership for the duration of the filing.
11 Provide the full names of all the current general partners, their social security or Federal ID numbers, and complete mailing addresses of their principal places of
business (See definition of “complete address” in number 7.) If adequate space is not provided to list all general partners, attach an additional schedule listing all other general partners.
If a general partner is either a corporation, a limited liability company, a limited partnership, a limited liability partnership, a limited liability limited partnership,
or another general partnership using a fictitious name, the general partner must be registered separately with the Secretary of State before this fictitious
name certificate will be effected The name and principal place of business of a general partner on this fictitious name certificate must be exactly as separately
registered with the Secretary of State Any name change or change of principal address required for the separate registration of the general partner will require a simultaneous change to the fictitious name certificate.
Section 11 does not need to be completed if number 5 indicates that the fictitious name is used by a limited partnership, or a limited liability limited
partnership.
12 Provide a brief and specific description of the nature of the business to be transacted in North Dakota “General business purposes” will not be accepted.
13 The certificate must bear original signatures of one or more of the general partners and the date on which each signed.
14 Provide the name, e-mail address, and daytime telephone number of the person to contact for any issues related to this application.
EXPEDITING PROCESS: Be sure to complete number 14 If the fictitious name certificate is being submitted by someone other than the partnership, provide a cover
letter with the name and telephone number of the responsible individual so that any deficiencies on the form can be remedied by telephone.
FAX FILING: The document and Credit Card Payment Authorization may be faxed to 701-328-2992 A faxed filing does not expedite the process of the application in the
office of the Secretary of State.
A sample form for a single (or fictitious) name partnership or business (continued).
212 SINGLE NAME PARTNERSHIP
Trang 6Although the Sixteenth Amendment gives
Congress broad powers to tax income“from
what-ever source derived,” Congress has chosen not to
lay and collect taxes on certain categories of
income, including the following: (1) amounts
received under workmen’s compensation acts as
compensation for personal injuries or sickness;
(2) the amount of any damages (other than
PUNITIVE DAMAGES) received on account of
per-sonal physical injuries or physical sickness; (3)
amounts received through accident or health
insurance for personal injuries or sickness; (4)
amounts received as a pension, annuity, or
similar allowance for personal injuries or
sick-ness resulting from active service in the armed
forces; and (5) amounts received by an
indi-vidual as disability income attributable to
inju-ries incurred as a direct result of a terroristic or
military action 26 U.S.C.A § 104
FURTHER READINGS
Jensen, Erik M 2001 “The Taxing Power, the Sixteenth
Amendment, and the Meaning of ‘Incomes’.” Arizona
State Law Journal 33 (winter).
Oring, Mark, and Steve Hampton 1994 “Cheek v United
States and the Tax Protest Movement: An Historical
Reassessment of the Sixteenth Amendment ” University
of West Los Angeles Law Review 25 (annual).
CROSS REFERENCES
Apportionment; Income Tax.
SIXTH AMENDMENT
The Sixth Amendment to the U.S Constitution
reads:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have COMPULSORY PROCESSfor obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense
The Sixth Amendment to the U.S Consti-tution affords criminal defendants seven dis-crete personal liberties: (1) the right to a speedy trial; (2) the right to a public trial; (3) the right
to an impartial jury; (4) the right to be informed
of pending charges; (5) the right to confront and to cross-examine adverse witnesses; (6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judi-ciary; and (7) the right to legal counsel Ratified
in 1791, the Sixth Amendment originally ap-plied only to criminal actions brought by the federal government
Over the past century, all of the protections guaranteed by the Sixth Amendment have been made applicable to the state governments through the doctrine of selective incorporation
Under this doctrine, the Due Process andEQUAL PROTECTION Clauses of the FOURTEENTH AMEND-MENT require each state to recognize certain fundamental liberties that are enumerated in the BILL OF RIGHTS, because such liberties are deemed essential to the concepts of freedom and equality Together with the SUPREMACY CLAUSE of Article VI, the Fourteenth Amend-ment prohibits any state from providing less protection for a right conferred by the Sixth Amendment than is provided under the federal Constitution
EMAIL: Email is not a secure utility for the transmission of private information or credit card authorizations DO NOT EMAIL YOUR DOCUMENT TO THE SECRETARY
OF STATE.
MAILING INSTRUCTIONS:
Send an original certificate AND filing fees to:
RENEWALS: Every fictitious name certificate filed with the Secretary of State must be renewed every five years from the date of the initial filing Forms for renewal are
prescribed by the Secretary of State and are sent to the address of the principal place of business at least sixty days before the deadline for renewal Therefore, it is imperative that the principal place of business address is always current with the Secretary of State.
Secretary of State State of North Dakota
600 E Boulevard Ave Dept 108 Bismarck ND 58505-0500
Telephone: 701-328-4284
ND Toll Free: 800-352-0867 (Option 1) Fax: 701-328-2992 Home Page: www.nd.gov/sos
SFN 7006 (06–2006)
Partnership Fictitious Name
A sample form for a single (or fictitious) name partnership or business (continued).
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PER-MISSION OF GALE, A PART OF CENGAGE LEARNING.
Trang 7Speedy Trial
The right to a SPEEDY TRIAL traces its roots to twelfth-century England, when the Assize of Clarendon declared that justice must be provided
to robbers, murderers, and thieves “speedily enough.” The Speedy Trial Clause was designed
by the Founding Fathers to prevent defendants from languishing in jail for an indefinite period before trial, to minimize the time in which a defendant’s life is disrupted and burdened by the anxiety and scrutiny accompanying public crim-inal proceedings, and to reduce the chances that
a prolonged delay before trial will impair the ability of the accused to prepare a defense The longer the commencement of a trial is post-poned, courts have observed, the more likely it is that witnesses will disappear, that evidence will
be lost or destroyed, and that memories will fade
A person’s right to a speedy trial arises only after the government has arrested, indicted, or otherwise formally accused the person of a crime Before the point of formal accusation, the government is under no Sixth Amendment obligation to discover, investigate, accuse, or prosecute a particular DEFENDANT within a cer-tain amount of time The Speedy Trial Clause is not implicated in post-trial criminal proceed-ings such asPROBATIONandPAROLEhearings Nor may a person raise a speedy-trial claim after the government has dropped criminal charges, even if the government refiles those charges at
a much later date However, the government must comply with the fairness requirements of the Due Process Clause during each juncture of
a criminal proceeding
The U.S.SUPREME COURThas declined to draw
a bright line separating permissible pretrial delays from delays that are impermissibly excessive Instead, the Court has developed a balancing test in which length of delay is just one factor to consider when evaluating the merits of a speedy-trial claim The other three factors that a court must consider are the reason for delay, the severity of prejudice, or injury, suffered by the defendant from delay, and the stage during the criminal proceedings in which the defendant asserted the right to a speedy trial
Defendants who fail to assert this right early in a criminal proceeding, or who acquiesce in the face of protracted pretrial delays, typically lose their speedy-trial claims
Defendants whose own actions lengthen the pretrial phase normally forfeit their rights under
the Speedy Trial Clause as well For example, defendants who frivolously inundate a court with pretrial motions are treated as having waived their rights to a speedy trial (United States v Lindsey, 47 F.3d 440 [D.C Cir 1995])
In such situations, defendants are not allowed to benefit from their own misconduct On the other hand, delays that are attributable to the government, such as those due to prosecutorial
NEGLIGENCEin misplacing a defendant’s file, will violate the Speedy Trial Clause (United States v Shell, 974 F.2d 1035 [9th Cir 1992])
A delay of at least one year in bringing a defendant to trial following arrest will trigger a presumption that the Sixth Amendment has been violated, with the level of judicial scrutiny increasing in direct proportion to the length of delay (United States v Gutierrez, 891 F Supp 97 [E.D.N.Y 1995]) The government may over-come this presumption by offering a“plausible reason” for the delay (United States v Thomas,
55 F.3d 144 [4th Cir 1995]) Courts generally will condone longer delays when the prosecu-tion has requested addiprosecu-tional time to prepare for a complex or difficult case When prosecu-tors have offered only implausible reasons for delay, courts traditionally have dismissed the
INDICTMENT, overturned the conviction, or vacated the sentence, depending on the remedy requested by the defendant
Public Trial
The right to a public trial is another ancient liberty that Americans have inherited from Anglo-Saxon JURISPRUDENCE During the seven-teenth century, when the English Court ofOYER AND TERMINERattempted to exclude members of the public from a criminal proceeding that the Crown had deemed to be sensitive, defendant John Lilburn successfully argued that immemo-rial usage and BritishCOMMON LAWentitled him
to a trial in open court where spectators are admitted The Founding Fathers believed that public criminal proceedings would operate as a check against malevolent prosecutions, corrupt
or malleable judges, and perjurious witnesses The public nature of criminal proceedings also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information, whether inculpatory or exculpatory
Under the Public Trial Clause, friends and relatives of a defendant must be initially per-mitted to attend trial However, the right to a
214 SIXTH AMENDMENT
Trang 8public trial is not absolute, and parents, spouses,
and children will be excluded if they disrupt
the proceedings (Cosentino v Kelly, 926 F
Supp 391 [S.D.N.Y 1996]) Toddlers and
infants, ranging from one month to two years
in age, may be summarily excluded from a
courtroom consistent with the Sixth
Amend-ment, even if the judge fails to articulate a
reason for doing so (United States v Short,
36 M.J 802 [A.C.M.R 1993]) Children in
this age group are too young to understand
LEGAL PROCEEDINGS, are easily agitated, and
present a substantial risk of hindering a trial
with distractions
The Sixth Amendment right to a public trial
is personal to the defendant and may not be
asserted by the media or the public in general
However, both the public and media have a
qualifiedFIRST AMENDMENTright to attend criminal
proceedings The First Amendment does not
accommodate everyone who wants to attend a
particular proceeding Nor does the First
Amend-ment require courts to televise any given legal
proceeding Oral arguments before the U.S
Supreme Court, for example, have never been
televised
Courtrooms are areas of finite space and
limited seating in which judges diligently attempt
to maintain decorum In cases that generate
tremendous PUBLIC INTEREST, courts sometimes
create lottery systems that randomly assign
citizens a seat in the courtroom for each day of
trial A separate lottery may be established for the
purpose of determining which members of the
media are permitted access to the courtroom on a
given day, although local and national
news-papers and television stations may be given a
permanent courtroom seat Members of the
media and public who are excluded from
attending trial on a given day are sometimes
provided admission to an audio room, where
they can listen to the proceedings
In rare cases, criminal proceedings will be
closed to all members of the media and the
public However, a compelling reason must be
offered before a court will follow this course
For example, when the First Amendment rights
of the media to attend a criminal trial collide
with a defendant’s Sixth Amendment right to a
fair trial, the defendant’s Sixth Amendment
right takes precedence, and the legal proceeding
may be closed (In re Globe Newspaper, 729 F.2d
47 [1st Cir 1984])
Criminal proceedings also have been con-ducted in private when the complaining witness
is a child who is young and immature and is being asked to testify about an emotionally charged issue such asSEXUAL ABUSE(Fayerweather
v Moran, 749 F Supp 43 [D.R.I 1990]) If the court determines that only one stage of a legal proceeding will be jeopardized by the presence
of the public or the media, then only that stage should be conducted in private (Waller v
Georgia, 467 U.S 39, 104 S Ct 2210, 81 L
Ed 2d 31 [1984]) For example, if a witness is expected to testify about classified government information or confidential trade secrets, the court may clear the courtroom for the duration
of such testimony, but no longer
The right to a public trial extends to pretrial proceedings that are integral to the trial phase, such as jury selection and evidentiary hearings (Rovinsky v McKaskle, 722 F.2d 197 [5th Cir
1984]) Despite the strong constitutional prefer-ence for public criminal trials, both courts-martial and juvenile delinquency hearings typically are held in a closed session, even when they involve criminal wrongdoing In all other proceedings, the defendant may waive his right to a public trial, in which case the entire criminal proceeding can be conducted in private
Right to Trial by an Impartial Jury
In both England and the American colonies, the Crown retained the prerogative to interfere with jury deliberations and to overturn verdicts that embarrassed, harmed, or otherwise challenged the authority of the royal government Finding such interference unjust, the Founding Fathers created a constitutional right to trial by an impartial jury This Sixth Amendment right, which can be traced back to theMAGNA CHARTA
in 1215, does not apply to juvenile delinquency proceedings (McKeiver v Pennsylvania, 403 U.S
528, 91 S Ct 1976, 29 L Ed 2d 647 [1971])
or to petty criminal offenses, which consist
of crimes punishable by imprisonment of six months or less (Baldwin v New York, 399 U.S
66, 90 S Ct 1886, 26 L Ed 2d 437 [1970])
The Sixth Amendment entitles defendants
to a jury pool that represents a fair cross section
of the community From the jury pool, also known as a“venire,” a panel of jurors is selected
to hear the case through a process called “voir dire.” DuringVOIR DIRE, the presiding judge, the prosecution, and attorneys for the defense are
Trang 9allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality The jurors who are ultimately impaneled for trial need not represent a cross section of the community
as long as each juror maintains impartiality throughout the proceedings The presence of even one biased juror is not permitted under the Sixth Amendment (United States v Aguon, 813 F.2d 1413[9th Cir 1987])
A juror’s impartiality may be compromised
by sources outside the courtroom, such as the media Jurors may not consider newspaper, television, or radio coverage before or during trial when evaluating the guilt or innocence of the defendant Before trial, judges will take special care to filter out those jurors whose neutrality has been compromised by extensive media coverage During trial, judges will ins-truct jurors to avoid exposing themselves to such extraneous sources Exposure to informa-tion about the trial from an extraneous source, whether it be the media, a friend, or a family member, creates a presumption of prejudice to the defendant that can only be overcome by persuasive evidence that the juror can still render an impartial verdict (United States v
Rowley, 975 F.2d 1357 [8th Cir 1992]) Failure
to overcome this presumption will result in the reversal of any conviction
The Sixth Amendment requires a trial judge
to inquire as to the possible racial biases of prospective jurors when defendants request such an inquiry and there are substantial indications that racial prejudice could play a decisive role in the outcome of the case (United States v Kyles, 40 F.3d 519 [2d Cir 1994]) But
an all-white jury does not, by itself, infringe on a black defendant’s right to an impartial jury, despite her contention that white jurors are incapable of acting impartially due to their perceived ignorance of inner-city life and its problems (United States v Nururdin, 8 F.3d
1187[7th Cir 1993]) However, if a white juror
is biased by an indelible prejudice against a black defendant, he will be stricken from the jury panel or venire
For similar reasons, jurors are not permitted
to begin deliberations until all of the evidence has been offered, the attorneys have made their closing arguments, and the judge has read the jury instructions Federal courts have found that
premature deliberations are more likely to occur after the prosecution has concluded itsCASE IN CHIEF and before the defense has begun its presentation (United States v Bertoli, 40 F.3d
1384 [3d Cir 1994]) Federal courts have also determined that once a juror has expressed a view, he is more likely to view the evidence in a light most favorable to that initial opinion If premature deliberations were constitutionally permitted, then the government would obtain
an unfair advantage over defendants because many jurors would enter the final deliberations with a prosecutorial slant (United States v Resko, 3 F.3d 684 [3d Cir 1993])
Although a jury must be impartial, there is
no Sixth Amendment right to a jury of 12 persons In Williams v Florida, 399 U.S 78, 90
S Ct 1893, 26 L Ed 2d 446 (1970), the U.S Supreme Court ruled that a jury of at least six persons is “large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a cross section of the commu-nity.” Conversely, the Court has declared that a jury of only five members is unconstitutionally small (Ballew v Georgia, 435 U.S 223, 98 S Ct
1029, 55 L Ed 2d 234[1978])
Similarly, there is no Sixth Amendment right to a unanimous jury (Apodaca v Oregon,
406 U.S 404, 92 S Ct 1628, 32 L Ed 2d 184 [1972]) The “essential feature of a jury lies in the interposition between the accused and the accuser of the common sense judgment of a group of laymen,” the Court wrote in Apodaca
“A requirement of unanimity,” the Court continued, “does not materially contribute to the exercise of that judgment.” If a defendant is tried by a six-person jury, however, the verdict must be unanimous (Burch v Louisiana, 441 U.S 130, 99 S Ct 1623, 60 L Ed 2d 96[1979])
Notice of Pending Criminal Charges
The Sixth Amendment guarantees defendants the right to be informed of the nature and cause
of the accusation against them Courts have interpreted this provision to have two elements First, defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge Second, defendants may not be tried, convicted,
or sentenced for a crime that materially varies from the crime set forth in the formal charge If
a defendant suffers prejudice or injury, such as a
216 SIXTH AMENDMENT
Trang 10conviction, from a material variance between
the formal charge and the proof offered at trial,
the court will vacate the verdict and sentence
The Sixth Amendment notice requirement
reflects the efforts of the Founding Fathers to
constitutionalize the common law concept of
fundamental fairness that pervaded civil and
criminal proceedings in England and the
American colonies Receiving notice of pending
criminal charges in advance of trial permits
defendants to prepare a defense in accordance
with the specific nature of the accusation
Defendants who are incarcerated by totalitarian
governments are frequently not apprised of
pending charges until the trial begins By
requiring substantial conformity between the
criminal charges and the incriminating proof at
trial, the Sixth Amendment eliminates any
confusion as to the basis of a particular verdict,
thereby decreasing the chances that a defendant
will be tried later for the same offense in
violation of DOUBLE JEOPARDYprotections
Many appeals have focused on the issue of
what constitutes a material variance In Stirone v
United States, 361 U.S 212, 80 S Ct 270, 4 L Ed
2d 252 (1960), the U.S Supreme Court found a
material variance between an indictment
charg-ing the defendant with illegal importcharg-ing activities,
and the trial evidence showing that the defendant
had engaged in illegal exporting activities In
United States v Ford, 88 F.3d 1350 (4th Cir
1996), the U.S Court of Appeals for the Fourth
Circuit found a material variance between an
indictment charging the defendant with a single
CONSPIRACY, and the trial evidence demonstrating
the existence of multiple conspiracies
However, no material variance was found
between an indictment that charged a defendant
with committing a crime in Little Rock,
Arkansas, and trial evidence showing that the
crime was actually committed in North Little
Rock, because both cities were within the
jurisdiction of the court hearing the case (Moore
v United States, 337 F.2d 350 [8th Cir 1964])
Nor was a material variance found in a
check-forgery case where the indictment listed the
middle name of the defendant, and the forged
instrument included only a middle initial (Helms
v United States, 310 F.2d 236 [5th Cir 1962])
Confrontation of Adverse Witnesses
The Sixth Amendment guarantees defendants
the right to be confronted by witnesses who
offer testimony or evidence against them The Confrontation Clause has two prongs The first prong assures defendants the right to be present during all critical stages of trial, allowing them
to hear the evidence offered by the prosecution,
to consult with their attorneys, and otherwise to participate in their defense However, the Sixth Amendment permits courts to remove defen-dants who are disorderly, disrespectful, and abusive (Illinois v Allen, 397 U.S 337, 90 S Ct
1057, 25 L Ed 2d 353 [1970]) If an unruly defendant insists on remaining in the court-room, the Sixth Amendment authorizes courts
to take appropriate measures to restrain him In some instances, courts have shackled and gagged recalcitrant defendants in the presence
of the jury (Stewart v Corbin, 850 F.2d 492 [9th Cir 1988]) In other instances, defiant defen-dants have been removed from court and forced
to watch the remainder of trial from a prison cell, through closed-circuit television
The second prong of the Confrontation Clause guarantees defendants the right to face adverse witnesses in person and to subject them
to CROSS-EXAMINATION Through cross-examina-tion, defendants may test the credibility and reliability of witnesses by probing their recollec-tion and exposing any underlying prejudices, biases, or motives to distort the truth or lie
Confrontation and cross-examination are vital components of the U.S adversarial system
Although defendants are usually given wide latitude in exercising their rights under the Confrontation Clause, courts retain broad dis-cretion to impose reasonable restrictions on particular avenues of cross-examination Defen-dants may be forbidden from delving into areas that are irrelevant, collateral, confusing, repeti-tive, or prejudicial Similarly, defendants may not pursue a line of questioning solely for the purpose
of harassment For example, courts have prohib-ited defendants from cross-examining alleged
RAPEvictims about their sexual histories because such questioning is frequently demeaning and is unlikely to elicit answers that bear more than a remote relationship to the issue of consent (Bell v
Harrison, 670 F.2d 656 [6th Cir 1982])
In exceptional circumstances, defendants may be prevented from confronting their accusers face-to-face If a judge determines that
a fragile child would be traumatized by testify-ing in front of a defendant, the Sixth Amend-ment authorizes the court to videotape the