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Sixth Amendment

What Is In Control?

July 2, 2025 by Peg Leave a Comment

One of the first lectures I received in law school was about how jury trials had changed over about 2,500 years; they hadn’t. According to my law professor, if we budding attorneys had walked into the courtroom in Athens for the trial of Socrates in 399 B.C., we would have easily understood the proceeding. Socrates was charged with corrupting Athenian youth with his views on the prevalent religion and government. He was convicted by a jury of about 500 citizens. Socrates was prosecuted by three senators and he defended himself. In other words, that court of over 2,000 years ago functioned like most courts of the 21st century, until the advent of smart telephones, artificial intelligence and rapidly changing electronic technology.

Unlike the practice of medicine, according to our law professor, that a physician of modern times would not even recognize, until recently the legal profession stoically struggled to deliver justice about the same way our Stone Age progenitors did. As science reached for the stars, the Star Chamber was right at home with the law. Most lawyers, judges and juries sought just verdicts, but often did so with quill pens, arcane fixtures and cloistered proceedings. Well, those honored, if often questioned, days have recently crashed upon the shoals of instant and ubiquitous information and misinformation. And much as the art world and the defense industry are wringing their hands and racing to keep up with machines gone mad, the legal profession is struggling to preserve the First Amendment’s guarantees of Freedom of Speech and the Press along with the Sixth Amendment’s guarantees of Due Process and a Fair Trial.

For thousands of years societies have confidently relied upon jurors to hear cases without being influenced by prejudicial information from outside of the court. Today, judges cannot just order jurors to not read newspapers, or listen to radio or television stories about a case. Jurors in 2025 are just like virtually every other child, teenager, adult and elderly person; everyone has a smart phone to which they are addicted. All the judicial admonishments judges can think of will not defeat the deep-seated need by jurors to “tune in and turn on” and, most likely buy into, the often incorrect information about practically anything, including “facts” about an on-going case.

The Founding Fathers most feared centralized governmental power and believed the best defense to it was for the public to have almost unfettered Freedom of Speech and for the media to be almost immunized from governmental restraint. Of course, America’s legal system has adapted many times to changes in our society. It will surely find ways to deal with the internet. However, the age-old reliance on the omnipotence and wisdom of the trial judge’s instructions has already become as much of a relic as the pyramids. And, just as the pyramids still inspire us, our historically provident legal system probably will too.

However, we in the legal profession must face the reality that Facebook and its ilk have to be dealt with because the populace will not stand for them to be destroyed. Surely, if I were back in that first law school class today, the professor would evince a different perspective on 2025’s legal system.

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Filed Under: Democracy, Gavel Gamut, Judicial Tagged With: due process and a fair trial, First Amendment, Founding Fathers, freedom of speech and the press, impartial and unprejudiced jurors, James M. Redwine, Jim Redwine, jury trials, legal profession, Sixth Amendment, Socrates

Cross Examination, The Engine Of Truth

September 14, 2018 by Peg Leave a Comment

Freedom of Speech is a good thing. That includes the “right” to lie and disparage anonymously. Cross examination is recognized in legal matters as the greatest engine of truth. It is just as much a Constitutional Right as Freedom of Speech. The First Amendment to the United States Constitution protects one’s right to speak and the Sixth Amendment protects the right to “confront one’s accusers”, i.e. to cross examine them, in criminal cases. Indiana’s Constitution guarantees both Freedom of Speech and “Face to Face” cross examination. It is clear that those who founded both our state and our country considered both rights sacred.

However, as with much of life and law the devil is in the details when particular situations that implicate conflicting Constitutional Rights must be addressed. If CNN and MSNBC want to proclaim President Trump a pariah while FOX News proclaims him a messiah both positions are constitutionally protected even if they might cite to anonymous sources to do so. So, how do those who disagree with either position exercise the right of cross examination. Well, they don’t. Private citizens and non-governmental entities are perfectly within their rights to cite or even make up anonymous sources.

When the government wants to use Confidential Informants in criminal cases to seek an arrest or search warrant, the police officer or Prosecuting Attorney must, under oath, set forth facts whereby the reviewing Judge or Magistrate can determine a C.I.’s information is credible. Such things as the ability and opportunity to observe are essential considerations. And, even if the Judge grants the request for a warrant, when a case is filed the Court has the authority to order the disclosure of a C.I.’s identity so that a person who is charged may cross examine the C.I. or have the case thrown out.

This protection of the truth is not available in the civil area nor should it be. If a media outlet wants to lie or make up sources the outlet might be sued but the government should not be allowed to squelch free speech. On the other hand, those of us who are inundated with a constant barrage of personal invective described by the media as “news” owe it to ourselves and our country to demand that news organizations disclose “anonymous sources” or, at least thoroughly vet them and set out the vetting process along with the source’s bona fides so we can judge for ourselves.

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Filed Under: America, Democracy, Gavel Gamut, News Media Tagged With: anonymous sources, CNN, confidential informants, cross examination, First Amendment, Fox News, Freedom of Speech, Indiana Constitution, James M. Redwine, Jim Redwine, MSNBC, President Trump, Sixth Amendment, United States Constitution

© 2025 James M. Redwine

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