The Sixth Amendment to the United States Constitution provides a criminal defendant with seven rights, three of which concern the right to a trial—right to a speedy trial, right to a public trial, and right to an impartial jury.


Although the Sixth Amendment does not use the word “fair,” it has been pretty much interpreted since the Constitution’s ratification that the right to a trial encompassed the right to a “fair” trial.


Meaning of Fair Trial


Writing in the Journal of Human Rights (Vol. 8, 2009, Iss. 1), Ian Langford noted that the word “fair first collocated with trial in the seventeenth century and since then the meaning of fair trial has varied with changes in meaning of the word fair itself. When people first spoke of a fair trial they meant a trial that was roughly ‘free from blemish,’ reflecting a meaning of fair that was in use until the nineteenth century … This ‘free from blemish’ meaning of fair trial became obsolete in the nineteenth and twentieth centuries and was replaced by a new meaning implying ‘procedural fairness,’ based on a ‘check list approach,’ … [after which] a fair trial became one that observed certain rights that has become possessions of the party being put on trial …”


Writing in the University of Chicago Legal Forum (Vol. 1998, Iss. 1, Article 2), Senior Judge of the Sixth Circuit Court of Appeals Danny J. Boggs defined today’s difference between a fair trial and the right to fair trial this way:


“ … In any individual case, there may be some things central to the legal concept of the right to a fair trial that are shaded, modified, or even omitted altogether, and yet the overall effect may be a metaphysically fair trial. Sometimes these discrepancies are covered by the doctrine of harmless error; in other cases, the rights, while generally of great significance, have little impact in the particular case. Yet our society and our Constitution generally have made the judgment that the measure of a fair trial is its adherence to stated processes. We may believe that this will ultimately lead to the fairest outcome, but we are certainly aware that in any given case the vindication of the right to a trial may not be exactly the same as a fair or correct outcome.”


Procedural Rules Make Fair Trials Difficult


Raye Dawn Smith recently learned that there is indeed a difference between a fair trial and the right to a fair trial through a decision handed down on September 17, 2018 by the Tenth Circuit Court of Appeals.


The State of Oklahoma charged Smith in 2005 with several child abuse charges, including one that involved the death of her two-year-old daughter. The case quite naturally generated “substantial interest and publicity.” The jury ultimately convicted Smith of “enabling child abuse.” She was given a 27-year prison sentence.


After her conviction, Smith filed a motion for a new trial. She supported the motion with two affidavits from people who attended the trial attesting that several jurors slept during the trial, with one juror doing so continuously. The trial court denied the motion. She appealed to the Oklahoma Court of Criminal Appeals which refused to order the trial court to conduct an evidentiary hearing on the sleeping juror issue.


Smith then sought federal habeas relief which was denied at the district court level. She appealed to the Tenth Circuit which made it clear that under prevailing federal habeas corpus jurisprudence it could grant relief only if the decision by the Oklahoma Court of Criminal Appeals “was contrary to, or an unreasonable application of, clearly established federal law the Supreme Court [has] established.”


Or, if the decision by the Oklahoma Court of Criminal Appeals’ decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.”


Sleeping Jurors


Smith argued to the Tenth Circuit that the Sixth Amendment guaranteed her “the right to an impartial, competent, and unimpaired jury.” There was some basis for Smith’s argument because the Tenth Circuit in 2012 held that if “jurors fall asleep and are unable to fairly consider the defendant’s case,” this could violate the Sixth and Fourteenth Amendment to the Constitution. The court, however, qualified that ruling by saying that just because a juror slept at some point during the trial does not automatically entitle a defendant to new trial relief.


The Tenth Circuit’s rejection of Smith federal habeas claims was based primarily on the fact that she failed to overcome the deference federal courts must give to state court decision-making. The court implied that assuming there were errors committed during her trial, Smith was not entitled to a new trial because she could not show the errors were prejudicial to her right to a fair trial.


In essence, a criminal defendant is entitled to a right to a trial in which his or her procedural rights are protected but is not entitled to a fair trial “free from blemish”—in other words, the right to a trial does not mean the right to a perfect trial.


The reality is this: legal concepts adopted by the courts over the past 50 years, like the “burden to show prejudice” or the “harmless error doctrine,” have severely undermined the historical definition and perception of the right to a fair trial.


And that’s why roughly two to ten percent of the 2.2 million people currently incarcerated in the nation’s prison system may be innocent.