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insofar 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 REFE RENCES Death and Dying; Estate and Gift Taxes. v SINCLAIR, 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’sfatherwasa 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 attorney CLARENCE DARROW to 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 t o find a publisher for his book, Sinclair, after six rejections, published the novel himself. He took out an ad in Appeal to Reason, ▼▼ ▼▼ Upton Beall Sinclair 1878–1968 19001900 19501950 19751975 19251925 18751875 ❖ 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 I AIMED AT THE PUBLIC ’S HEART, AND BY ACCIDENT I HIT IT IN THE STOMACH . —UPTON SINCLAIR GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 208 SINCLAIR, UPTON BEALL and 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. President THEODORE ROOSEVELT met 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 the PURE FOOD AND DRUG ACT OF 1906, 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- can INCUMBENT Frank Merriam. Sinclair returned to writing in the 1940s, producing his fam ous 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 oc casionally 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’sdebt. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SINGLE NAME PAPER 209 SINGLE 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 the SECRETARY 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 See SOLE 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 appo rtioned 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 federal INCOME 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 210 SINGLE NAME PARTNERSHIP [continued] Partnership Fictitious Name 1. FILING FEES 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 # Filed By Expiration Date SEE REVERSE SIDE FOR FEES, FILING AND MAILING INSTRUCTIONS TYPE OR PRINT LEGIBLY For reference, see North Dakota Century Code, Chapter 45-11. 13. Fictitious name 14. Fictitious name is used by ٗ 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.) SOCIAL NAME SECURITY/ COMPLETE ADDRESS 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." Signature Date Signature Date Signature Date Signature Date Signature Date Signature Date Signature Date Signature Date 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. SINGLE NAME PARTNERSHIP 211 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Partnership Fictitious Name [continued] INSTRUCTIONS FOR PARTNERSHIP FICTITIOUS NAME CERTIFICATE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Although the Sixteenth Amendment gives Congress broad p owers t o tax in come “from what- ever source derived,” Congress has chosen not to lay and collect taxes on certain categories of income, including the fo llowing: (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 Apportionm ent; 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 PROCESS for 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 and EQUAL 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 prohibi ts 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SIXTH AMENDMENT 213 Speedy 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 forma l 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 as PROBATION and PAROLE hearings. 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 COURT has 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 consid er 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 NEGLIGENCE in 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 govern ment 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 additional 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 of OYER AND TERMINER attempted 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 British COMMON LAW entitled 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 Publi c Trial Clause, friends and relatives of a defendant must be initially per- mitted to attend trial. However, the right to a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 214 SIXTH AMENDMENT public 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 qualified FIRST AMENDMENT right 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,courtssometimes 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 proce edings 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 as SEXUAL 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 the MAGNA CHARTA in 1215, does not apply to juvenile delinquency proceedings (McKeiver v. Pennsylva nia, 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.” During VOIR DIRE, the presiding judge, the prosecution, and attorneys for the defense are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SIXTH AMENDMENT 215 allowed 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 compromis ed 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, 8F.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 its CASE IN CHIEF and before the defense has begun its presentation (United States v. Ber toli, 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 judgme nt.” 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 Amendm ent 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 216 SIXTH AMENDMENT conviction, 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 totalita rian governments are frequently not apprised of pending charge s until the trial begins. By requiring substantial conformity between the criminal charge s 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 JEOPARDY protections. 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 importing 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 Amendm ent 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 t elevision. 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 RAPE victims 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SIXTH AMENDMENT 217 . Reason, ▼▼ ▼▼ Upton Beall Sinclair 1878– 196 8 190 0 190 0 195 0 195 0 197 5 197 5 192 5 192 5 18751875 ❖ 1878 Born, Baltimore, Md. 190 1 Released first book, Springtime and Harvest ◆ 190 5 Helped establish Intercollegiate. U.S. 528, 91 S. Ct. 197 6, 29 L. Ed. 2d 647 [ 197 1]) 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 (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SIXTH AMENDMENT 213 Speedy Trial The right