Right to Compulsory Process

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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 defence.

The Sixth Amendment guarantees a criminal defendant the right “to have compulsory process for obtaining witnesses in his favor.” 1 Two early nineteenth century cases illustrate the initial conceptions of the Compulsory Process Clause. Although neither is a Supreme Court case, both are notable in that they feature the analyses of then-Supreme Court Justices sitting on lower federal courts. In the first case, Justice Samuel Chase stated in the 1800 case United States v. Cooper that the “constitution gives to every man, charged with an offence, the benefit, of compulsory process, to secure the attendance of his witnesses.” 2 In the second case, Chief Justice John Marshall “presided as trial judge” over the “treason and misdemeanor trials of Aaron Burr.” 3 In an 1807 opinion subsequently described by the Supreme Court as the “first and most celebrated analysis” of compulsory process, Marshall “ruled that Burr’s compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence.” 4 In addition to these two cases, another early insight into the Compulsory Process Clause may be gleaned from an 1833 treatise that suggests an apparent purpose of the provision was to make inapplicable in federal trials the common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense.5

The Supreme Court has since characterized the Compulsory Process Clause as one of several constitutional provisions guaranteeing defendants “a meaningful opportunity to present a complete defense.” 6 There is little Supreme Court precedent examining the contours of the Compulsory Process Clause,7 because the Court has generally analyzed issues involving a defendant’s right to “obtain[ ] witnesses in his favor” 8 through a Due Process framework.9 For instance, in the 1987 case Pennsylvania v. Ritchie, the Court indicated that requests to compel the government to reveal the identity of witnesses or produce exculpatory evidence should be evaluated under due process rather than compulsory process analysis, adding that “compulsory process provides no greater protections in this area than due process.” 10 Thus, compulsory process rights such as the right to testify are also secured by the Due Process Clause.11

Despite the limited precedent, there are a few Supreme Court cases that offer insights into the Compulsory Process Clause.12 In the 1967 case Washington v. Texas, the Court observed that the “right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights” and that the right amounts “in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” 13 The Court in Washington further held that “[t]his right is a fundamental element of due process of law,” applicable to states by way of the Fourteenth Amendment, and the right is violated by a state law that provides that co-participants in the same crime could not testify for one another.14 As the Court explained, it is a violation of the Compulsory Process Clause if the state “arbitrarily denied [a defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” 15 The Court has also held that under the Compulsory Process Clause is “the accused’s right . . . to testify himself, should he decide it is in his favor to do so.” 16 The right to present witnesses is not absolute, however; a court may refuse to allow a defense witness to testify when the court finds that defendant’s counsel willfully failed to identify the witness in a pretrial discovery request and thereby attempted to gain a tactical advantage.17 In addition, a defendant “cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation” of potential witnesses “deprived him of their testimony” ; rather “[h]e must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.” 18

1: U.S. Const. amend. VI.
2: U.S. v. Cooper, 4 U.S. 341 (C.C.D. Pa. 1800).
3: Pennsylvania v. Ritchie, 480 U.S. 39, 55 (1987); U.S. v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807).
4: Ritchie, 480 U.S. at 55 (discussing Burr, 25 F. Cas. at 35; see also Burr, 25 F. Cas. at 34 (holding that the right to the accused “to the compulsory process of the court” contains “no exception whatever” ).
5: 3 J. Story, Commentaries On The Constitution Of The United States 1786 (1833). In the 1851 case United States v. Reid, the Supreme Court concluded that a defendant was not entitled to a new trial after his witness had been barred from testifying under state law on the grounds that the witness had been tried separately for the same crime as the defendant. 53 U.S. 361, 366 (1851). In the 1918 case Rosen v. United States, the Court overruled Reid. 245 U.S. 467, 472 (1918). Although Rosen “rested on nonconstitutional grounds,” the Court subsequently explained that “its reasoning was required by the Sixth Amendment.” Washington v. Texas, 388 U.S. 14, 22 (1967). “In light of the common-law history, and in view of the recognition in the Reid case that the Sixth Amendment was designed in part to make the testimony of a defendant’s witnesses admissible on his behalf in court, it could hardly be argued that a State would not violate the clause if it made all defense testimony inadmissible as a matter of procedural law.” Id.
6: See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) ( “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)); accord Faretta v. California, 422 U.S. 806, 818 (1975) ( “The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice—through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it.” ); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ( “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” ).
7: See Ritchie, 480 U.S. at 55 ( “This Court has had little occasion to discuss the contours of the Compulsory Process Clause.” ).
8: U.S. Const. amend. VI. One Supreme Court case suggests that the Compulsory Process Clause may also “require the production of evidence.” See Ritchie, 480 U.S. at 56 (discussing United States v. Nixon, 418 U.S. 683, 709 (1974)).
9: See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ( “The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” ); Webb v. Texas, 409 U.S. 95, 98 (1972) ( “In the circumstances of this case, we conclude that the judge’s threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.” ); In re Oliver, 333 U.S. 257, 275 (1948) ( “Except for a narrowly limited category of contempts, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” ).
10: 480 U.S. at 56 (explaining that “the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence” had traditionally been evaluated under the Due Process Clause of the Fourteenth Amendment, and that it need not decide “whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment” ).
11: See Rock v. Arkansas, 483 U.S. 44, 51–53 (1987) (explaining that the right to testify is grounded in the Compulsory Process Clause and the Due Process Clause, and is also a “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony” ); see generally Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
12: Ritchie, 480 U.S. 39, 55 (1987) ( “Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court’s decisions during the next 160 years.” ). The Court has identified a number of “pre-1967 cases that mention compulsory process” but that “do not provide an extensive analysis of the Clause.” Id. at 55 n.12 (citing Pate v. Robinson, 383 U.S. 375, 378, n. 1 (1966); Blackmer v. United States, 284 U.S. 421, 442 (1932); United States v. Van Duzee, 140 U.S. 169, 173 (1891); Ex parte Harding, 120 U.S. 782, 7 S.Ct. 780 (1887)),
13: 388 U.S. 14, 18–19 (1967).
14: Id. at 17–19, 23.
15: Id. at 23.
16: Rock, 483 U.S. at 52.
17: Taylor v. Illinois, 484 U.S. 400, 415 (1988); see also Melendez-Diaz v. Mass., 557 U.S. 305, 327 (2009) ( “It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses.” ); United States v. Nobles, 422 U.S. 225, 241 (1975) ( “The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” ). There also appear to be limits on the extent to which a party has a right to introduce other types of evidence under the Compulsory Process Clause. See United States v. Scheffer, 523 U.S. 303, 315 (1998) ( “Rock v. Arkansas, Washington v. Texas, and Chambers v. Mississippi, do not support a right to introduce polygraph evidence, even in very narrow circumstances.” ).
18: United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).