No.

18-106
================================================================

In The
Supreme Court of the United States
------------------------------------------------------------------

JOHN R. TURNER,
Petitioner,
v.

UNITED STATES,
Respondent.

------------------------------------------------------------------

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Sixth Circuit

------------------------------------------------------------------

BRIEF FOR THE DUE PROCESS INSTITUTE

AND THE CATO INSTITUTE AS AMICI CURIAE
IN SUPPORT OF PETITIONER

------------------------------------------------------------------

STEPHEN A. MILLER SHANA TARA O’TOOLE

Counsel of Record DUE PROCESS INSTITUTE
BARRY BOSS 700 Pennsylvania Ave., SE
KARA L. KAPP Suite 2019
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CLARK M. NEILY III
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JAY R. SCHWEIKERT
[email protected]
CATO INSTITUTE
(215) 665-4736
1000 Massachusetts Ave., NW
Washington, D.C. 20001
[email protected]
(202) 216-1461
Counsel for Amici Curiae
the Due Process Institute and the Cato Institute
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
 i

QUESTIONS PRESENTED

Whether the Sixth Amendment right to counsel at-

taches before indictment when the prosecutor threatens
to indict a defendant unless he accepts the prosecutor’s
offer of a plea agreement.
Whether the Sixth Amendment right to counsel
attaches when a federal prosecutor conducts plea ne-
gotiations before the filing of a formal charge in federal
court, where the defendant has already been charged
with the same offense in state court.
 ii

TABLE OF CONTENTS
Page
INTEREST OF AMICI ......................................... 1
SUMMARY OF ARGUMENT .............................. 2
REASONS FOR GRANTING THE WRIT............ 4
I. This Court’s Sixth Amendment attach-
ment jurisprudence is untethered from
the Amendment’s original meaning .......... 4
A. The Supreme Court’s Sixth Amendment
jurisprudence applies different attach-
ment rules to different rights despite a
shared textual foundation ...................... 4
B. The Court’s current attachment rules
are untethered from the Sixth Amend-
ment’s text and original meaning ......... 7
C. This case presents an opportunity to
clarify the rule and provide much needed
guidance to lower courts on a question
of considerable importance ................... 8
II. The Framers intended Sixth Amendment
rights to attach pre-indictment if the pros-
ecutor communicated an intent to prose-
cute a person and requested that person to
admit guilt or face indictment ................... 10
A. Founding-era sources reveal that the
Framers understood a person to be an
“accused” subject to a “prosecution” when
a government official had expressed an
intent to prosecute and requested that
the individual admit guilt....................... 12
 iii

TABLE OF CONTENTS—Continued
Page
B. Jurists of the Founding era similarly
understood a person to be an “accused”
subject to a “prosecution” where a gov-
ernment official expressed an intent to
prosecute and requested that the indi-
vidual admit guilt .................................. 18
C. The Sixth Amendment affords a right to
counsel to Turner because the prosecu-
tor required Turner to enter a guilty
plea or otherwise face indictment ......... 22
CONCLUSION..................................................... 24
 iv

TABLE OF AUTHORITIES
Page
CASES
Allen v. State, 10 Ga. 85 (1851) ..................................20
Ariz. State Legislature v. Ariz. Indep. Redistrict-
ing Comm’n, 135 S. Ct. 2652 (2015) .......................10
Boumedine v. Bush, 553 U.S. 723 (2008) ....................18
Ex parte Burford, 3 Cranch (7 U.S.) ...........................20
Carpenter v. United States, 138 S. Ct. 2206
(2018) .......................................................................11
Clinton v. Jones, 520 U.S. 681 (1997) .........................19
District of Columbia v. Heller, 554 U.S. 570 (2008) .........11
Franklin v. Massachusetts, 505 U.S. 788 (1992) ........19
Hamilton v. Alabama, 368 U.S. 52 (1961) ................ 6, 7
Hollingsworth v. Duane, 12 F. Cas. 359 (C.C.D.
Pa. 1801) ..................................................................20
Kirby v. Illinois, 406 U.S. 682 (1972) ........................ 6, 8
Kyllo v. United States, 533 U.S. 27 (2001) ..................12
Lafler v. Cooper, 566 U.S. 156 (2012) ............................5
Lynch v. Donnelly, 465 U.S. 668 (1984) ......................15
Marsh v. Chambers, 463 U.S. 783 (1983) ...................11
Massiah v. United States, 377 U.S. 201 (1964) ............6
Missouri v. Frye, 566 U.S. 134 (2012) ...........................5
Moran v. Burbine, 475 U.S. 412 (1986).........................6
Myers v. United States, 272 U.S. 52 (1926) ................14
 v

TABLE OF AUTHORITIES—Continued
Page
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) .................................................15
NLRB v. Canning, 134 S. Ct. 2550 (2014)..................18
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) .................5
Sveen v. Melin, 138 S. Ct. 1815 (2018) .......................11
Texas v. Cobb, 532 U.S. 162 (2001) ...............................8
United States Term Limits v. Thornton, 514 U.S.
779 (1995) ................................................................18
United States v. Ash, 413 U.S. 300 (1973) ................ 5, 6
United States v. Bollman, 24 F. Cas. 1189
(C.C.D.C. 1807) .................................................. 20, 21
United States v. Burr, 25 F. Cas. 30 (C.C. Va.
1807) ................................................................ passim
United States v. Gouveia, 467 U.S. 180 (1984) ......... 7, 8
United States v. Hubbell, 530 U.S. 27 (2000) .............19
United States v. Jones, 565 U.S. 400 (2012) ......... 11, 22
United States v. Marion, 404 U.S. 307 (1971) ..............4
United States v. Moore, 26 F. Cas. 1308, 1 Wall
Cir. Ct. 23 (1801) .....................................................20
United States v. Turner, 885 F.3d 949 (6th Cir.
2018) ................................................................ passim
United States v. Wade, 388 U.S. 218 (1967)..................6
United States v. Williams, 28 F. Cas. 647 (C.C.D.C.
1833) ........................................................................20
 vi

TABLE OF AUTHORITIES—Continued
Page
White v. Maryland, 373 U.S. 59 (1963) ..................... 6, 7
Wyoming v. Houghton, 526 U.S. 295 (1999) ...............12

CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. VI ........................................ passim

OTHER AUTHORITIES
Albert W. Alschuler, Plea Bargaining and Its
History, 79 COLUM. L. REV. 1 ..................................22
John Ash, New & Complete Dictionary of the
English Language (London, Edward & Charles
Dilly 1775) ................................................... 12, 13, 16
Nathan Bailey, New Universal Etymological
English Dictionary (London, T. Waller, 4th ed.
1756) ........................................................................14
Rev. James Barclay, Complete & Universal Eng-
lish Dictionary (London, J.F. & C. Rivington et
al., 1792) ...................................................... 12, 13, 16
Richard Burn & John Burn, A New Law Dictionary
(London, A. Strahan & W. Woodfall 1792) ........ 14, 17
Crimes Act of 1790, 1st Cong. § 29 (2d Sess.
1790) ........................................................................15
Timothy Cunningham, A New and Complete
Law Dictionary (London, S. Crowder et al.
1764) .................................................................. 14, 17
 vii

TABLE OF AUTHORITIES—Continued
Page
J.A.G. Davis, A Treatise on Criminal Law, with
an Exposition of the Office and Authority of
Justices of the Peace in Virginia 110 (C. Sher-
man & Co. 1838) ......................................................17
Thomas Dyche & William Pardon, A New Gen-
eral English Dictionary (London, Toplis &
Bunney, 18th ed. 1781) ...................................... 13, 16
Giles Jacob, A New Law Dictionary (The Savoy,
Henry Lintot, 6th ed. 1750) .............................. 14, 17
Samuel Johnson, Dictionary of the English Lan-
guage (London, J. F. & C. Rivington et al., 7th
ed. 1785) ............................................................ 13, 16
Steven J. Mulroy, The Bright Line’s Dark Side:
Pre-Charge Attachment of the Sixth Amend-
ment Right to Counsel, 92 WASH. L. REV. 213
(2017) .........................................................................5
William Perry, The Royal Standard English Dic-
tionary (Worcester, 1st Am. ed. 1788) ............... 13, 16
Thomas Potts, A Compendious Law Dictionary
(London, T. Ostell 1803) ..........................................14
Thomas Sheridan, A Complete Dictionary of the
English Language (London, Charles Dilly, 3d
ed. 1790) ............................................................ 13, 16
John Walker, A Critical Pronouncing Dictionary
(London, G.G.J. & J. Robinson, & T. Cadell,
1791) .................................................................. 13, 16
Noah Webster, American Dictionary of the Eng-
lish Language (N.Y. S. Converse 1828)............. 13, 16
 viii

TABLE OF AUTHORITIES—Continued
Page
Peter Westen, The Compulsory Process Clause,
73 MICH. L. REV. 71 (1974)........................................5
 1

INTEREST OF AMICI
In accordance with Supreme Court Rule 37, Amici
respectfully submit this brief in support of the Peti-
tioner.1 The Due Process Institute is a non-profit, bi-
partisan, public-interest organization that works to
honor, preserve, and restore principles of fairness in
the criminal justice system. The Cato Institute is a
nonpartisan public policy research foundation dedi-
cated to advancing the principles of individual liberty,
free markets, and limited government; Cato’s Project
on Criminal Justice focuses on the scope of substantive
criminal liability, the proper and effective role of police
in their communities, the protection of constitutional
safeguards for criminal suspects and defendants, citi-
zen participation in the criminal justice system, and
accountability for law enforcement officers. The court
below wrongly denied Turner his fundamental right to
the assistance of counsel at a critical stage in the fed-
eral criminal prosecution against him. As such, Amici
have a strong interest in the questions presented by
the petition.
------------------------------------------------------------------

1
Pursuant to Rule 37.3(a), all parties received timely notice
of the intent to file this brief and have consented to the filing of
this brief. Letters showing such consent have been filed with the
Clerk of the Court. In accordance with Rule 37.6, Amici note that
no counsel for any party authored this brief in whole or in part,
and no counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. No one other
than Amici or their counsel made a monetary contribution to the
preparation and submission of this brief.
 2

SUMMARY OF ARGUMENT
This Court’s Sixth Amendment attachment juris-
prudence has become detached from the Amendment’s
original meaning. The Court wrongly applies different
attachment rules to different Sixth Amendment rights,
even though these rights share the same textual foun-
dation. These differing rules, moreover, are untethered
from the Amendment’s text and original meaning. This
case presents an ideal vehicle to clarify the rule and
provide much needed guidance to lower courts on this
question of considerable importance.
Founding-era sources make clear that Sixth
Amendment rights attached before indictment where
a prosecutor communicated an intent to prosecute a
person and requested that person to either admit guilt
or face an indictment. Founding-era dictionaries reveal
that contemporaries understood a person to be an “ac-
cused” subject to a “prosecution” where a government
official expressed an intent to prosecute and requested
that the individual formally admit guilt. At the time of
the Founding, the term “accuse” was defined broadly
and was not limited to the specific act of indicting. Ac-
cordingly, the Framers would have understood that an
“accused” would have included anyone who had been
blamed by or informed of a government official’s intent
to file formal criminal charges against them. The
Founding-era understanding of “prosecution” referred
to the general pursuit of a task or goal, including the
initial steps involved in pursuing a criminal case
against a person. As a prosecutor’s pursuit of formal
charges naturally begins prior to filing an indictment,
 3

Framing-era citizens would have understood the term

“prosecution” to include a prosecutor’s pre-indictment
acts in pursuit of charging and convicting an accused.
Framing-era jurists likewise understood a person
to be an “accused” subject to a “prosecution”—for Sixth
Amendment purposes—where a government official
expressed an intent to prosecute and requested that
the individual admit guilt. Principally, in United States
v. Burr, Chief Justice Marshall addressed this very
question. 25 F. Cas. 30, 32 (C.C. Va. 1807). The Court
held that the defendant’s Sixth Amendment rights at-
tached immediately, prior to indictment, where a gov-
ernment official, General James Wilkinson, had
drafted a letter to President Thomas Jefferson accus-
ing Burr of treason. Id. at 30. Throughout the opinion,
Chief Justice Marshall refers to Burr as “the accused,”
despite the fact that he had yet to be indicted. Id.
Applying the Sixth Amendment’s original mean-
ing here, Turner’s right to counsel plainly attached at
the moment the federal prosecutor stated his intent to
prosecute Turner as part of a demand that Turner
plead guilty. By expressing an intent to indict Turner
and requesting that he enter a guilty plea, the prose-
cutor unequivocally accused Turner of a federal crime,
a critical step in the pursuit of federal charges against
him. The Court should thus grant the writ of certiorari
and restore the original understanding of when the
Sixth Amendment right to counsel is triggered.
------------------------------------------------------------------
 4

REASONS FOR GRANTING THE WRIT

I. This Court’s Sixth Amendment attachment
jurisprudence is untethered from the
Amendment’s original meaning.
The Sixth Amendment enumerates several rights
to criminal defendants—among them the right to as-
sistance of counsel, the right to compulsory process of
witnesses, and the right to be informed of the allega-
tions against them. Despite sharing the same textual
foundation, this Court has wrongly applied different
attachment rules to each of these enumerated rights,
and has done so in a manner untethered from the
Amendment’s text and original meaning. The Court
should grant the writ in this case because this case
presents an ideal vehicle to clarify its attachment ju-
risprudence and restore the Amendment to its original
meaning.

A. The Supreme Court’s Sixth Amend-

ment jurisprudence applies different
attachment rules to different rights de-
spite a shared textual foundation.
Under the Court’s current Sixth Amendment at-
tachment framework, certain rights attach earlier
than others even though all Sixth Amendment rights
apply to the “accused” in all “criminal prosecutions.”
For example, the right to a speedy trial may attach pre-
indictment in the case of a defendant’s arrest. See
United States v. Marion, 404 U.S. 307, 321 (1971) (hold-
ing that “it is either a formal indictment or information
 5

or else the actual restraints imposed by arrest . . . that

engage the particular protections of the speedy trial
provision of the Sixth Amendment”). Similarly, the
right to compulsory process may also attach pre-indict-
ment and pre-arrest, once a defendant has an interest
in preparing his defense. See, e.g., Burr, 25 F. Cas. at 33
(compulsory process); see also Pennsylvania v. Ritchie,
480 U.S. 39, 55 (1987) (citing Burr favorably); Peter
Westen, The Compulsory Process Clause, 73 MICH. L.
REV. 71, 104–08 (1974) (discussing importance of Burr
opinion in Sixth Amendment interpretation); Steven J.
Mulroy, The Bright Line’s Dark Side: Pre-Charge At-
tachment of the Sixth Amendment Right to Counsel,
92 WASH. L. REV. 213, 222-26 (2017) (discussing this
Court’s precedent allowing for pre-charge attachment
of right to counsel). There is no principled basis why
the same attachment rule should not apply to the right
to counsel.
The current Sixth Amendment attachment rule,
moreover, creates unprincipled inconsistencies with re-
spect to what qualifies as a critical stage at which a
defendant has a right to advice of counsel. The Court
has explained that whether an event constitutes a
“critical stage” of the criminal prosecution depends on
whether the stage is a “trial-like confrontation.” See
United States v. Ash, 413 U.S. 300, 309-12 (1973). Ap-
plying this principle, the Court has recognized that
plea negotiations, interrogations, and lineups qualify
as critical stages. See, e.g., Missouri v. Frye, 566 U.S.
134, 140 (2012) (applying Sixth Amendment right to
counsel to plea negotiations); Lafler v. Cooper, 566 U.S.
 6

156, 162 (2012) (same); United States v. Wade, 388 U.S.

218, 236-37 (1967) (applying right to counsel to pre-
trial lineups); Massiah v. United States, 377 U.S. 201,
205-06 (1964) (applying right to counsel to pre-trial in-
terrogations); White v. Maryland, 373 U.S. 59 (1963)
(applying right to counsel to entry of plea); Hamilton v.
Alabama, 368 U.S. 52 (1961) (same). In White and
Hamilton, the Court concluded that the right must at-
tach before the plea stage so that the lawyer could ad-
vise the accused on available defenses in order to allow
him to intelligently decide whether to plead guilty.
White, 373 U.S. at 60; Hamilton, 368 U.S. at 54-55; ac-
cord Ash, 413 U.S. at 312.
However, under the current attachment rule, de-
fendants subjected to these same government actions
before indictment may be denied the right to counsel
that would apply to them after indictment. See, e.g.,
Moran v. Burbine, 475 U.S. 412, 431-32 (1986) (holding
that the right to counsel does not apply to pre-indict-
ment interrogations); Kirby v. Illinois, 406 U.S. 682
(1972) (holding that the right to counsel does not apply
to pre-indictment lineup). There is no principled reason
why making the decision whether to plead, post-indict-
ment, is more of a “trial-like confrontation” than the
same stage, pre-indictment. That is especially true
where, as here, the prosecutor has already expressed
an intent to indict if the plea offer was rejected.
The Sixth Circuit’s application of the Court’s
right-to-counsel attachment rule demonstrates its
logical absurdity. The Sixth Circuit claimed that the
question whether a stage is “critical” “must be kept
 7

‘distinct’ ” from whether the right has yet attached—

even though these questions are inextricably related.
See, e.g., United States v. Gouveia, 467 U.S. 180, 189
(1984) (explaining that the timing of attachment is
closely tied to whether the accused has reached a crit-
ical stage of the proceedings). If a stage qualifies as a
critical part of a “criminal prosecution,” that must in-
form whether the right should attach, as the rationales
in White and Hamilton make clear. The Sixth Circuit’s
opinion, however, makes no effort to grapple with, let
alone resolve, the unprincipled inconsistencies result-
ing from this jurisprudence.

B. The Court’s current attachment rules

are untethered from the Sixth Amend-
ment’s text and original meaning.
The Sixth Amendment rights apply to all who are
“accused” in a “criminal prosecution[.]” Specifically, it
provides that “[i]n all criminal prosecutions, the ac-
cused 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 de-
fence” (emphasis added). The attachment rules accord-
ingly must find their anchor in these two key terms:
“accused” and “criminal prosecution.”
 8

As a matter of basic sentence construction, the

Court should assume that a word or phrase such as the
“accused” or “criminal prosecution” means the same
thing in the same sentence to all subordinate clauses of
that sentence. Cf. Texas v. Cobb, 532 U.S. 162, 173
(2001) (holding that there is “no constitutional differ-
ence” between the meaning of the same term (“of-
fense”) in the Fifth and Sixth Amendments). The
Court’s Sixth Amendment attachment jurisprudence,
however, treats the terms “accused” and “criminal
prosecution” as if they mean one thing with respect to
the right to be informed but something else with re-
spect to the right to counsel. Such a result has no basis
in the Amendment’s text, particularly because each of
these terms only appears once in the Amendment, and
thus can only have one meaning.

C. This case presents an opportunity to

clarify the rule and provide much
needed guidance to lower courts on a
question of considerable importance.
The Court’s right-to-counsel attachment rule is
also unmoored from the Sixth Amendment’s original
meaning. See Kirby v. Illinois, 406 U.S. 682 (1972) (plu-
rality) (no consideration of original meaning in an-
nouncing attachment rule); see also Gouveia, 467 U.S.
at 188-89 (affirming the rule announced in Kirby with
no originalist analysis). The Court’s journey away from
the Sixth Amendment’s original meaning has resulted
in logically flawed tests like the one applied by the
 9

lower courts. This case presents an opportunity to re-

store the Court’s attachment jurisprudence and re-
store logical consistency in the protection of individual
liberties.
The Court has never addressed the question
squarely presented here. It has never answered
whether a prosecutor’s presentment of a pre-indict-
ment plea offer constitutes the initiation of a “criminal
prosecution” where the prosecutor has expressed an in-
tent to indict and a parallel prosecution for the same
conduct is already underway.
The existing jurisprudence, moreover, makes no
answer to this question inevitable. As Judge Bush
stated in his concurrence dubitante, “the Court’s prec-
edents do not expressly state that only a ‘formal
charge, preliminary hearing, indictment, information,
or arraignment’ may trigger the attachment of the
right to counsel. . . . This leaves open the possibility
that the prosecutor’s presentment of the plea offer was
itself an ‘initiation of criminal proceedings.’ ” United
States v. Turner, 885 F.3d 949, 956 n. 1 (6th Cir. 2018)
(Bush, J., concurring dubitante). The Court should take
this opportunity to provide much needed guidance on
this important issue.
 10

II. The Framers intended Sixth Amendment

rights to attach pre-indictment if the pros-
ecutor communicated an intent to prose-
cute a person and requested that person to
admit guilt or face indictment.
Founding-era sources provide critical insight into
the original meaning of the Sixth Amendment and its
key terms. Founding-era dictionaries reveal that con-
temporaries understood a person to be an “accused”
subject to a “prosecution” where a government official
had expressed an intent to prosecute and requested
that the individual formally admit guilt. Framing-era
jurists likewise understood a person to be an “accused”
subject to a “prosecution” where a government official
expressed an intent to prosecute and requested that
the individual admit guilt. Applying this original un-
derstanding to Turner’s case, Founding-era citizens
would have understood the Sixth Amendment right to
counsel to apply to Turner because the prosecutor had
expressed an intent to institute criminal proceedings
and requested that Turner enter a guilty plea.
The following review of Founding-era sources elu-
cidates the meaning of “accused” and “criminal prose-
cution” in the Sixth Amendment, terms which are
critical in understanding when the enumerated Sixth
Amendment rights were intended to attach. The Court
regularly consults Founding-era dictionaries, early de-
cisions of the federal judiciary, and other historical doc-
uments in determining the Constitution’s original
meaning. See, e.g., Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2671-72 (2015)
 11

(using Founding-era dictionary definitions to interpret

“legislature” as used in the Elections Clause); D.C. v.
Heller, 554 U.S. 570, 604-14 (2008) (looking to post-rat-
ification commentary on the Second Amendment);
Marsh v. Chambers, 463 U.S. 783, 787-91 (1983) (noting
“historical evidence sheds light not only on what the
draftsmen intended the Establishment Clause to
mean, but also how they thought that Clause applied
. . . ”); see also Sveen v. Melin, 138 S. Ct. 1815, 1826-28
(2018) (Gorsuch, J., dissenting) (discussing original
public meaning of the Contracts Clause). Indeed,
“[f ]aithful adherence to the Constitution . . . requires
us to examine [its] terms as they were commonly un-
derstood when the text was adopted and ratified[.]”
Turner, 885 F.3d at 955 (Bush, J., concurring dubi-
tante) (emphasis added).
Where the Court is asked to apply an amendment
to a modern context not present or foreseeable at the
time of the Framing, as here, the Court asks how
Founding-era contemporaries understood the right to
operate in the contexts that then existed. It then ap-
plies that understanding by analogy to the present-day
context. See, e.g., Carpenter v. United States, 138 S. Ct.
2206, 2223 (2018) (holding that the government must
obtain a warrant to access historical cellphone records
to avoid “encroachment of the sort the Framers, ‘after
consulting the lessons of history,’ drafted the Fourth
Amendment to prevent”); United States v. Jones, 565
U.S. 400, 411 (2012) (applying “an 18th-century guar-
antee against unreasonable searches” to the govern-
ment’s use of GPS monitoring to track a criminal
 12

suspect); Kyllo v. United States, 533 U.S. 27, 40 (2001)

(applying same to thermal imaging searches); Wyo-
ming v. Houghton, 526 U.S. 295, 300 (1999) (analyzing
“the historical evidence to show that the Framers
would have regarded as reasonable (if there was prob-
able cause) the warrantless search of containers within
an automobile”); accord Turner, 885 F.3d at 958 (Bush,
J., concurring dubitante).

A. Founding-era sources reveal that the

Framers understood a person to be an
“accused” subject to a “prosecution” when
a government official had expressed an
intent to prosecute and requested that
the individual admit guilt.
Beginning with Founding-era dictionaries, the def-
initions of “accuse” were broad in scope and would eas-
ily include a government official’s act of announcing an
intent to prosecute and requesting that the individual
admit guilt. Specifically, the definitions of “accuse” in
these dictionaries generally encompassed acts of plac-
ing blame on, censuring, imputing wrongful conduct to,
or expressing an intent to institute a criminal action
against an individual. Of the nine prevailing non-legal
English dictionaries of the Framing era, eight define
“accuse” as to “blame,” “censure,” “declare to have com-
mitted a crime,” or “to charge with a crime.”2 Notably,

2
See John Ash, New & Complete Dictionary of the English
Language (London, Edward & Charles Dilly 1775) (“To charge, to
impeach, to censure.”); Rev. James Barclay, Complete & Univer-
sal English Dictionary (London, J.F. & C. Rivington et al., 1792)
 13

the term “to charge” is further defined by these same

dictionaries as “to impute” an action to a person or to
“censure” someone.3 The ninth does not define “accuse”
but rather “accusation,” and describes it as “intending
a criminal action against any one, either in one’s own

(“To charge with a crime; to inform against, indict, or impeach; to

censure.”); Thomas Dyche & William Pardon, A New General Eng-
lish Dictionary (London, Toplis & Bunney, 18th ed. 1781) (“To
indict, impeach, charge with a fault.”); Samuel Johnson, A Dic-
tionary of the English Language (London, J. F. & C. Rivington et
al., 7th ed. 1785) (“To charge with a crime; To blame or censure.”);
William Perry, The Royal Standard English Dictionary (Worces-
ter, 1st Am. ed. 1788) (“to impeach, blame or censure”); Thomas
Sheridan, A Complete Dictionary of the English Language (Lon-
don, Charles Dilly, 3d ed. 1790) (“To charge with a crime; to blame
or censure.”); John Walker, A Critical Pronouncing Dictionary
(London, G.G.J. & J. Robinson, & T. Cadell, 1791) (“To charge
with a crime; to blame or censure.”); Noah Webster, American
Dictionary of the English Language (N.Y. S. Converse 1828) (“To
charge with, or declare to have committed a crime, either by
plaint, or complaint, information, indictment, or impeachment; to
charge with an offense against the laws, judicially or by a public
process”); accord Turner, 885 F.3d at 958 n. 5 (Bush, J., concurring
dubitante).
3
See Ash, supra n. 1 (“to impute, to put to any one’s account”);
Barclay, supra n. 1 (“to impute or ascribe”); Dyche & Pardon, su-
pra n. 1 (“to accuse a person with something”); Johnson, supra n. 1,
available at https://books.google.com/books?id=j-UIAAAAQAAJ&q=
charge#v=snippet&q=charge (“[t]o impute as a crime” “[t]o ac-
cuse; to censure”); Perry, supra n. 1 (“to accuse; . . . [to] impute”);
Sheridan, supra n. 1 (“to accuse, to censure”); Walker, supra n. 1
(“to impute . . . to accuse, to censure”); Webster, supra n. 1 (“[t]o
load or lay on in words, something wrong, reproachful or criminal;
to impute to”); accord Turner, 885 F.3d at 958 n. 5 (Bush, J., con-
curring dubitante).
 14

name, or that of the publick.”4 The four prevailing legal

English dictionaries of the Founding era do not define
the verb “accuse.” Three instead define the term “accu-
sation,” only by way of example, citing Clause 39 of the
Magna Carta.5 The fourth does not define “accuse” or
“accusation” at all.6
In sum, at the time of the Sixth Amendment’s rat-
ification, the term “accuse” was defined broadly, in-
cluded the general act of blaming an individual for
wrongful conduct, and was in no way limited to the act
of indicting or otherwise filing formal criminal charges.
Accordingly, as the term “accused” was originally un-
derstood, it would include anyone who had been
blamed, censured, or informed of a government offi-
cial’s intent to file criminal charges against them.
The use of the term “accused” in the Crimes Act of
1790—drafted by the First Congress—confirms that
the term was commonly understood at that time to in-
clude individuals not yet indicted. See Myers v. United
States, 272 U.S. 52, 174-75 (1926) (noting that the
First Congress’s decisions “have always been regarded
. . . as of the greatest weight” in interpreting the

4
Nathan Bailey, New Universal Etymological English Dic-
tionary (London, T. Waller, 4th ed. 1756).
5
See Timothy Cunningham, A New and Complete Law Dic-
tionary (London, S. Crowder et al. 1764); Giles Jacob, A New Law
Dictionary (The Savoy, Henry Lintot, 6th ed. 1750); Thomas
Potts, A Compendious Law Dictionary (London, T. Ostell 1803).
6
Richard Burn & John Burn, A New Law Dictionary (Lon-
don, A. Strahan & W. Woodfall 1792) (next entry after “account”
is “ac etiam”).
 15

Constitution); see also, e.g., Lynch v. Donnelly, 465 U.S.

668, 674 (1984) (noting that “17 draftsmen of the Con-
stitution . . . were Members of the First Congress” and
consulting legislation enacted by the First Congress in
interpreting original “contemporaneous understand-
ing” of Establishment Clause). Notably, the Act in some
places used the phrase “accused or indicted” in enu-
merating rights that applied to defendants. See, e.g.,
Crimes Act of 1790, 1st Cong. § 29 (2d Sess. 1790) (ex-
tending right to subpoena witnesses to both “accused”
and “indicted” individuals). The inclusion of “accused”
individuals and “indicted” individuals as separate
groups to whom these rights applied signals that the
First Congress understood the term “accused” to apply
to some individuals who had not yet been “indicted.”
Any other reading would make the inclusion of both
terms (“accused” and “indicted”) redundant. See Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
669 (2007) (cautioning “against reading a text in a way
that makes part of it redundant”).
Likewise, the term “prosecution”—as defined in
Founding-era dictionaries—includes all stages of a
prosecutor’s pursuit of a criminal case against a per-
son, which almost invariably begins prior to indict-
ment. Eight of the nine prevailing English non-legal
dictionaries define the term “prosecution.”7 Seven of
these sources define it primarily as a “pursuit; an

7
The ninth, New Universal Etymological English Diction-
ary, does not define the terms “prosecute” or “prosecution” at all.
Bailey, supra n. 3 (entry following “prosa” is “proselytes”).
 16

endeavor to carry on any design.”8 This broad defini-

tion includes all stages of a “pursuit.” These dictionar-
ies include more specific secondary definitions, such as
“process at law” and “suit against a man in a criminal
cause.”9 One dictionary, The Royal Standard English
Dictionary, defines prosecution only as “a criminal or
civil suit.”10 This source, however, defines the act itself,
“to prosecute,” more broadly, consistent with the other
leading dictionaries, as “to pursue, continue.”11 Of the

8
Ash, supra n. 1 (“A pursuit, an endeavor to carry on any
design.”); Barclay, supra n. 1 (“an endeavor to carry on. A contin-
ued attempt, or a continuation of an attempt.”); Dyche & Pardon,
supra n. 1 (“a lawsuit for some offence; the earnest pursuit of any-
thing”); Johnson, supra n. 1 (“Pursuit; endeavor to carry on.”);
Sheridan, supra n. 1 (“Pursuit, endeavor to carry on.”); Walker,
supra n. 1 (“Pursuit, endeavor to carry on”); Webster, supra n. 1
(“The act or process of endeavouring to gain or accomplish some-
thing; pursuit by efforts of body or mind . . . ”); accord Turner, 885
F.3d at 959 n. 8 (Bush, J., concurring dubitante).
9
Ash, supra n. 1 (“A pursuit, an endeavor to carry on any
design; a process at law.”); Barclay, supra n. 1 (“an endeavor to
carry on. A continued attempt, or a continuation of an attempt. A
suit against a person in law.”); Dyche & Pardon, supra n. 1 (“a
lawsuit for some offence; the earnest pursuit of anything”); John-
son, supra n. 1 (“Pursuit; endeavor to carry on. Suit against a man
in a criminal cause.”); Sheridan, supra n. 1 (“Pursuit, endeavor to
carry on; suit against a man in a criminal cause.”); Walker, supra
n. 1 (“Pursuit, endeavor to carry on; suit against a man in a crim-
inal cause”); Webster, supra n. 1 (“The act or process of endeav-
ouring to gain or accomplish something; pursuit by efforts of body
or mind . . . The institution or commencement and continuance of
a criminal suit; the process of exhibiting formal charges against
an offender before a legal tribunal, and pursuing them to final
judgment”).
10
Perry, supra n. 1 (“a criminal or civil suit”).
11
Id.
 17

prevailing legal English dictionaries, three do not de-

fine the term at all.12 The fourth defines a related term,
“prosecutor,” as “he that follows a cause in another’s
name.”13
The Founding-era definitions of “prosecution”
broadly define this term to capture all stages of the
pursuit of a goal, including the initial steps involved in
pursuing a criminal case against a person. At the time
the Sixth Amendment was ratified, the earliest official
steps in at least some jurisdictions often occurred be-
fore indictment.14 As a prosecutor’s pursuit of formal
charges naturally begins prior to the act of filing an
indictment, the term “prosecution” was originally un-
derstood to include a prosecutor’s pre-indictment acts
in pursuit of those charges. Demanding that the ac-
cused agree to plead guilty without requiring the pros-
ecutor to file a formal indictment falls well within the
scope of such a pursuit.

12
Burn & Burn, supra n. 5 (entry following “prorogue” is
“protection”); Jacob, supra n. 4 (same); Potts, supra n. 4 (same).
13
Cunningham, supra n. 4.
14
In Virginia, for example, state criminal proceedings in the
Founding-era began—prior to indictment—with an examination
by a magistrate. See, e.g., J.A.G. Davis, A Treatise on Criminal
Law, with an Exposition of the Office and Authority of Justices of
the Peace in Virginia 110, 416 (C. Sherman & Co. 1838).
 18

B. Jurists of the Founding era similarly

understood a person to be an “accused”
subject to a “prosecution” where a gov-
ernment official expressed an intent to
prosecute and requested that the indi-
vidual admit guilt.
This Court has emphasized that “historical prac-
tice” should be accorded “significant weight” in adjudi-
cating constitutional questions. NLRB v. Canning, 134
S. Ct. 2550, 2559-60 (2014). As the primary evidence of
historical judicial practice, this Court routinely con-
sults early jurisprudence and gives particular weight
to the decisions of this Court’s Founding-era jurists, in-
cluding Chief Justice Marshall. See, e.g., Boumedine v.
Bush, 553 U.S. 723, 781-82 (2008) (quoting Chief Jus-
tice Marshall’s opinion in Ex parte Watkins); United
States Term Limits v. Thornton, 514 U.S. 779, 788,
821-22 (1995) (quoting Chief Justice Marshall in
McCulloch v. Maryland). A review of this jurisprudence
confirms that—consistent with the Founding-era dic-
tionaries and legislation—Founding-era jurists under-
stood a person to be an “accused” subject to a
“prosecution” where a government official expressed
an intent to prosecute and requested that the individ-
ual admit guilt.
Principally, in United States v. Burr, Chief Justice
Marshall, sitting as a circuit judge, addressed the very
question of whether a defendant qualified as an “ac-
cused” subject to a “prosecution” prior to indictment,
whose Sixth Amendment rights attached. 25 F. Cas. 30,
33 (C.C. Va. 1807). In Burr, Chief Justice Marshall held
 19

that defendant Aaron Burr’s Sixth Amendment rights

attached pre-indictment where a government official,
General James Wilkinson, had drafted a letter to Pres-
ident Thomas Jefferson accusing Burr of treason, and
President Jefferson had penned a response.15 Id. at 31.
Burr stood accused—but not yet indicted—of treason
for allegedly conspiring to provoke insurrection out
West in Spanish territory. Id. at 30. Burr had moved
for a subpoena duces tecum to obtain a copy of General
Wilkinson’s letter to President Jefferson accusing him
of treason and a copy of the President’s response. Id.
The question arose whether Burr was entitled to the
Sixth Amendment right to compulsory service of pro-
cess. Id. at 31. Chief Justice Marshall ruled that the
right had indeed attached, reasoning that “accused”
meant something different from “indicted,” and that
the enumerated rights attach as soon as a defendant
has an interest in preparing his case. Id. at 33.
To be sure, this case involved the Sixth Amend-
ment right to compulsory process rather than the right
to counsel. Because both rights are constrained by
the same key terms informing when these rights at-
tach (“accused” and “criminal prosecution”), that dis-
tinction is immaterial. The Court should therefore
“accord significant weight to Chief Justice Marshall’s
analysis,” as it provides critical primary evidence of
15
Notably, United States v. Burr has been cited repeatedly
by this Court in recent years in considering important constitu-
tional and evidentiary issues. See, e.g., United States v. Hubbell,
530 U.S. 27, 54 (2000) (Thomas, J., concurring); Clinton v. Jones,
520 U.S. 681, 703-04 (1997); Franklin v. Massachusetts, 505 U.S.
788, 826 (1992).
 20

the Founding-era understanding of these key terms.

Turner, 885 F.3d at 962-63 (Bush, J., concurring dubi-
tante).
Other early federal decisions corroborate the con-
clusion that Framing-era jurists understood that a per-
son could be an “accused” subject to a “prosecution”
prior to indictment, who were thus entitled to the Sixth
Amendment’s enumerated protections.16 For instance,
in United States v. Bollman, where two defendants
were accused of conspiring with Burr to commit trea-
son against the United States, defense counsel invoked
the Sixth Amendment right to counsel.17 24 F. Cas.
16
See, e.g., United States v. Bollman, 24 F. Cas. 1189
(C.C.D.C. 1807) (No. 14,622) (applying Sixth Amendment right to
counsel to defendants pre-indictment because “at least no author-
ity had been cited where an accused person had been denied this
privilege”); Ex parte Burford, 3 Cranch (7 U.S.) 448, 450-52 (1806)
(Marshall, C.J.) (granting the writ of habeas corpus to a prisoner,
holding that the Sixth Amendment right to be informed of accu-
sations attached pre-indictment); Hollingsworth v. Duane, 12 F.
Cas. 359, 363 (C.C.D. Pa. 1801) (No. 6,616) (applying Sixth
Amendment protection to defendant absent indictment despite
summary nature of contempt proceedings); United States v.
Moore, 26 F. Cas. 1308, 1 Wall Cir. Ct. 23 (1801) (recognizing the
right of a defendant to compulsory process before indictment);
Allen v. State, 10 Ga. 85, 91 (1851) (applying Sixth Amendment
protection of compulsory process to defendants pre-indictment
based on need to put defendants on “equal ground[s]” with prose-
cution); see also, e.g., United States v. Williams, 28 F. Cas. 647,
654 (C.C.D.C. 1833) (No. 16,712) (applying state statute mirror-
ing Sixth Amendment protection of compulsory process to defend-
ant pre-indictment as an accused based on interpretation that
right applied to persons “accused or indicted”) (emphasis added).
17
At the time of the case, many referred to the Sixth Amend-
ment as the “eighth article of the amendments of the constitution
of the United States” because the initial Bill of Rights approved
 21

1191. They argued that defense counsel had the right

to present argument to the court on whether probable
cause existed to try the defendants. Id. The court ap-
plied the Sixth Amendment right to counsel prior to
indictment, allowing counsel to present argument. Id.
In so holding, it referred to the defendants as the “ac-
cused” and noted that “no authority had been cited
where an accused person had been denied this privi-
lege[.]” Id. (emphasis supplied). While two of the three
judges expressed some doubt as to whether the right
yet attached, using lenity as their guidepost, the panel
concluded that the right should attach and counsel
should be heard. Id. Defense counsel then presented
argument on the merits. Id. In determining the origi-
nal understanding of when the Sixth Amendment
right to counsel was intended to attach, there can be
no better evidence than how jurists decided this very
question at the time of the Founding. Burr and Boll-
man thus provide powerful confirmation that as origi-
nally understood, attachment of Sixth Amendment
rights, including the right to counsel, did not hinge on
the act of indictment.

by the First Congress had twelve, not ten, articles. The first of
these articles was never ratified and the second was not ratified
at the time of the Founding (the Twenty-Seventh Amendment).
The remaining articles (Three through Twelve) were renumbered
from One to Ten. Turner, 885 F.3d at 961 n. 13 (Bush, J., concur-
ring dubitante); see also, e.g., Bollman, 24 F. Cas. at 1190.
 22

C. The Sixth Amendment affords a right to

counsel to Turner because the prosecutor
required Turner to enter a guilty plea or
otherwise face indictment.
As discussed above, Founding-era citizens would
have understood an “accused” to include anyone who
had been blamed, censured, or informed of a govern-
ment official’s intent to file formal criminal charges
against him. Turner fits squarely within these bounds.
Turner had already been indicted in state court on
multiple counts for the underlying conduct. Turner,
885 F.3d at 951. During these state proceedings,
Turner’s counsel came into contact with a federal pros-
ecutor, who confirmed that he planned to bring charges
for the same underlying conduct. Id. at 952. The fed-
eral prosecutor then conveyed a plea offer to Turner’s
counsel, requesting that Turner plead guilty now or
face a federal indictment imminently. Id. To be sure,
the Framers neither faced nor contemplated this exact
scenario, as plea bargaining did not exist at that time.18
Where, as in Jones, 565 U.S. at 411, the Court faces a
context that neither existed nor was foreseeable at the
time of the Founding, the Court’s first task is to discern
the guiding principles employed by the Founding gen-
eration in applying the right. Id. Once discerned, the
Court must apply those principles to the facts pre-
sented. See id. Applying the Founding-era understand-
ing to this case, there is no question that once the
federal prosecutor conveyed to Turner’s attorney his

18
See Albert W. Alschuler, Plea Bargaining and Its History,
79 COLUM. L. REV. 1, 8-9 (1979).
 23

intent to indict Turner, Turner became an “accused”

under the Sixth Amendment.
Moreover, the term “prosecution” was originally
understood to include a federal prosecutor’s pre-indict-
ment acts designed to initiate criminal proceedings
and achieve a successful conviction of the accused.
Therefore, the federal prosecutor’s request that Turner
agree to plead guilty without requiring the prosecutor
to file a formal indictment was plainly designed to ini-
tiate (and successfully complete) the guilt phase of
criminal proceedings. Because Founding-era contem-
poraries would have understood Turner as an “ac-
cused” faced with an early stage federal “criminal
prosecution,” the right to counsel plainly attached at
this stage and the lower court’s opinion must be re-
versed.
------------------------------------------------------------------
 24

CONCLUSION
For the foregoing reasons, Amici respectfully sub-
mit that the Court should grant Petitioner’s petition
for a writ of certiorari.
STEPHEN A. MILLER SHANA TARA O’TOOLE
Counsel of Record DUE PROCESS INSTITUTE
BARRY BOSS 700 Pennsylvania Ave., SE
KARA L. KAPP Suite 2019
COZEN O’CONNOR Washington, D.C. 20003
One Liberty Place [email protected]
1650 Market Street (202) 558-6683
Suite 2800
CLARK M. NEILY III
Philadelphia, PA 19103
JAY R. SCHWEIKERT
[email protected]
CATO INSTITUTE
(215) 665-4736
1000 Massachusetts Ave., NW
Washington, D.C. 20001
[email protected]
(202) 216-1461
Counsel for Amici Curiae
the Due Process Institute and the Cato Institute