Corpus Linguistics and the Original Meaning of the Sixth Amendment

Authors

Wesley White

Abstract

The Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.

This Note is among relatively few to perform an in-depth analysis of the original public meaning of the Sixth Amendment’s right to counsel provision and is the first scholarship to employ corpus linguistics in that analysis. The Sixth Amendment guarantees an accused the right to counsel in “all criminal prosecutions.” Using corpus linguistics, this Note finds strong evidence that Founding-era Americans ordinarily understood “prosecution” to occur only after a formal charge was brought against an accused. Therefore, the right to counsel in pre-charge plea bargaining is likely not guaranteed under the original public meaning of the Sixth Amendment.

Rights

© 2024 Brigham Young University Law Review

Recommended Citation

Wesley White, Corpus Linguistics and the Original Meaning of the Sixth Amendment, 50 BYU L. Rev. 155 (2024).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss1/10