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The Compulsory Process Clause Michigan Law Review Volume 73 Issue 1 1974 The Compulsory Process Clause Peter Westen University of Michigan Law School, [email protected] Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Criminal Procedure Commons, Evidence Commons, and the Legal History Commons Recommended Citation Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 71 (1974). Available at: https://repository.law.umich.edu/mlr/vol73/iss1/7 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE COMPULSORY PROCESS CLAUSE Peter Westen I. THE ORIGINAL MEANING OF COMPULSORY PROCESS • • • • . 75 A. The History of Compulsory Process in England . 78 I. The Emergence of Jury Trial (1066-1450) . 79 2. The Nature of an Inquisitional Process (1450- 1600) . 81 3. The Development of an Adversary Process (1600- 1700) . 87 B. The History of Compulsory Process in America . 90 I. The Colonial Period . 91 2. The Revolutionary Period . 93 3. The Bill of Rights . 95 - 4. The Trial of Aaron Burr . 101 II. THE EMERGING DOCI'R.INE: WASHINGTON v. TEXAS • • • . • . 108 III. THE PRESENT SCOPE OF COMPULSORY PROCESS . • • • . • • • • 117 A. The Right To Discover Exculpatory Witnesses . 121 I. The Basis of Constitutional Discovery . 121 2. The Importance of Relying on Compulsory Process . 126 B. The Right To Put Defense Witnesses on the Stand . 132 1. Rules of Competence that Disqualify Witnesses from Taking the Stand . 133 a. Rules that disqualify witnesses to avoid un­ trustworthy testimony . 133 b. Rules that disqualify witnesses to further independent state interests . 136 2. Rules of Practice that Discourage Witnesses from Taking the Stand . 139 a. The prevailing standard . 139 b. The problem of joinder . 141 c. The problem of trial order . 145 C. The Right To Have Defense Witnesses Believed . 146 D. The Right To Introduce Exculpatory Evidence 149 [ 71] 72 Michigan Law Review E. The Right To Compel Witnesses To Disclose Privileged Information . 159 1. Government Privileges . 161 2. The Privilege Against Self-Incrimination . 166 3. Private Privileges . 170 a. Privileges that can be constitutionally narrowed ................... : . 171 b. Privileges that can be constitutionally modified . 172 c. Privileges that cannot be accommodated . 173 F. The Right to a Fair Balance of Advantage with the Prosecution with Respect to Presenting Witnesses . 177 IV. CONCLUSION 182 THE COMPULSORY PROCESS CLAUSE Peter Westen* HE Supreme Court has begun to breathe life into a clause of T the Constitution that has remained practically dormant since its adoption-the compulsory process clause of the sixth amendment. The defendant's right of compulsory process is a companion and counterpart to his sixth amendment right of confrontation. Together they guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor."1 • Assistant Professor of Law, University of Michigan. B.A. 1964, Harvard Uni­ versity; J.D. 1968, University of California, Berkeley. The author is deeply grateful to his colleagues, Professors Frank Allen, Tom Green, and Jerry Israel, for their thoughtful comments on earlier drafts of this article. Research for this paper was made possible by a generous grant from the William W. Cook Endowment Fund. I. U.S. CONST. amend. VI. Forty-eight states (all but Nevada and New York) make some provision in their constitutions for compulsory process. Seventeen states guaran­ tee compulsory process with the precise wording of the sixth amendment. ALA. CONST. art. I, § 6; .ALAS. CONST. art. I, § II; ARK. CONST. art. II, § 10; HAWAII CONST. art. I, § 11; IND. CONST. art. I, § 13; KY. CONST. BILL OF RTS., § 11; ·LA. CONST. art. I, § 9; ME. CONST. art. I, § 6; MICH. CONST. art. I, § 20; MINN. CONST. art. I, § 6; MISS. CONST. art. Ill, § 26; N.J. CONST. art. I, § 10; ORE. CONST. art. I, § II; PA. CONST. art. I, § 9; S.C. CONST. art. I, § 18; TENN. CONST. art. I, § 9; W. VA. CONST. art. III, § 14. Six states use slightly different wording that does not appear to change the clause's m!!aning. CONN. CoNST. art. I, § 8 ("to obtain witnesses in his behalf"); DEL. CONST. art. I, § 7 ("compulsory process in due time, on application by himself, his friends or counsel, for obtaining witnesses in his favor"); IowA CoNST. art. I, § 10 ("compulsory process for his witnesses"); OKLA. CoNST. art. 2, § 20 ("for obtaining witnesses in his behalf"); R.I. CONST. art. I, § 10; S.D. CONST. art. VI, § 7 ("compulsory process served for obtaining witnesses in his behalf'). Fifteen states, with slight variations in wording, emphasize that the purpose of comp.ulsory process is to compel the attendance of defense witnesses. ARIZ. CONST. art. II, § 24 ("[i]n criminal prosecutions, the accused shall have the right • • • to have compulsory process to compel the attendance of witnesses in his own behalf"); CAL. CONST. art. I, § 13; COLO. CONST. art. II, § 16; IDAHO CONST. art. I, § 13; ILL. CONST. art. I, § 8; KAN. CONST. BILL OF RTS., § 10; Mo. CoNST. BILL OF RTS., art. I, § 18(a); MoNT. CONST. art. III, § 16; NEB. CONST. art. I, § 11; N.M. CoNST. art. II, § 14; N.D. CONST. art. I, § 13; Omo CONST. art. I, § 10; UTAH CoNST. art. I, § 12; WASH. CONST. art. l, § 22; WIS. CONST. art. I, § 7. Six states emphasize that the purpose of compulsory process is to enable the defendant to present evidence in his favor. Massachusetts and New Hampshire provide that "every subject shall have a right to produce all proofs, that may be favorable to him[self]." MASS. CONST. pt. I, art. XII; N.H. CONST. pt. I, art. 15. Vermont provides that "in all prosecutions for criminal offenses, a person hath a right ••. to call for evidence in his favor," VT. CONST. ch. I, art. IO, and Virginia's provision is virtually identical. VA. CONST. art. I, § 8. Georgia and North Carolina refer to the "testimony" of defense witnesses. GA. CONST. art. I, § I, 11 V ("com­ pulsory process to obtain the testimony of his own witnesses''); N.C. CoNST. art. I, § 23 (the right .•• to confront the accusers and witnesses with other testimony"). [ 73] 74 Michigan Law Review [Vol. 73:71 The compulsory process clause differs in one significant respect, however, from the confrontation clause and the other procedural guarantees of the sixth amendment: The defendant's rights to be informed of the charges against him, to receive a speedy and public trial, to be tried by a jury, to be assisted by counsel, and to be con­ fronted with adverse witnesses are designed to restrain the prosecu­ tion by regulating the procedures by which it presents its case against the accused. They apply in every case, whether or not the defendant seeks to rebut the case against him or to present a case of his own. Compulsory process, on the other hand, comes into play at the close of the prosecution's case. It operates exclusively at the defendant's initiative and provides him with affirmative aid in presenting his defense. Despite its significance, the compulsory process clause for years failed.to fulfill its intended role in criminal procedure. Courts tended to construe its specific words without reference to their historical purpose, and assumed that the clause guaranteed the accused only the right to subpoena witnesses to appear in court. Too often courts searched the outer limits of due process and other provisions in the Bill of Rights for principles that lay throughout at the very core of the compulsory process clause. Only recently has this view begun to change. In a series of cases decided since 1967, the Supreme Court has rejected the narrow construction of the clause, and has recognized that compulsory process constitutionalizes the entire presentation of the defendant's case. Part I of this article traces the history of compulsory process, from its origin in the English transition from an inquisitional to an ad­ versary system of procedure to its eventual adoption in the American Bill of Rights. Part II examines the Supreme Court's seminal de- Two states give the defendant compulsory process for witnesses whether or not they are in his favor. FLA. CONST. art. I, § 16 ("[i]n all criminal prosecutions the accused ... shall have the right to have compulsory process for witnesses .••"); WYo. CONST. art. I, § 10 ("[t]he right ... to have compulsory process served for obtaining witnesses"). Texas adopts the wording of the sixth amendment, with the added provision that the accused in some cases be permitted to introduce deposition testimony. TEX. CONST. art. I, § 10 ("[The accused] shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide .• ,"), Maryland explicitly guarantees the defendant the right to examine his witnesses under oath. MD. CONST. DEc. OF RTS., art. 21 ("in all criminal prosecutions, every man hath a right ... to have process for his witnesses [and] to examine the witnesses for and against him on oath ..•"). November 1974] Compulsory Process 75 cision in Washington v. Texas,2 which recognized after a century and a half of silence that the compulsory process clause was designed to enable the defendant not only to produce witnesses, but to put them on the stand and have them heard.
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