10.8 Compulsory Process

LibraryDefending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.8 COMPULSORY PROCESS

10.801 In General. The Sixth Amendment also guarantees that in a criminal case the accused enjoys the right "to have compulsory process for obtaining witnesses in his favor." 294 This right is clearly not satisfied by a process that simply allows the defense to subpoena witnesses upon request.

In Webb v. Texas, 295 for example, the trial court, on its own initiative, intimidated an important defense witness and the witness refused to testify. Although the Supreme Court did not specifically hold that this action violated the accused's compulsory process right, it did find a violation of due process and a denial of the right to a fair trial.

The leading compulsory process case is Washington v. Texas. 296 This case involved a state law that prohibited an alleged accomplice from testifying for the defense (although an accomplice could testify for the state). The Supreme Court held that the rule violated the Sixth Amendment even though it did not involve a state's refusal to subpoena the accomplice. The Court said the Sixth Amendment guarantees the right of the defense "to put its witnesses on the stand, as well as its right to compel their attendance in court." 297 The Court was careful to qualify its ruling as not involving the traditional

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testimonial privileges or a disqualification on the grounds of infancy or infirmity. 298

Compulsory process cases may also arise in the context of government claims or an informer's privilege. The leading case on the subject is Roviaro v. United States. 299 Although Roviaro was not decided on constitutional grounds, it is generally assumed to be coextensive with the Sixth Amendment. In Roviaro, the Court held that the government could not refuse to disclose the identity of a confidential informer at trial, under the facts of the case, when the testimony of the informer appeared to be highly relevant and possibly beneficial to the accused. The right to compel disclosure in those cases, however, does not extend to pretrial motions to suppress when the confidential informer was the one who furnished information to support probable cause. 300

10.802 Witnesses. In a criminal case, a subpoena for the attendance of a witness may be issued by the commonwealth's attorney, by any other attorney with the responsibility for prosecuting violations of an ordinance, or by the defendant's attorney. 301 In a court not of record, a subpoena may be issued by the judge, clerk, magistrate, commonwealth's attorney, or defendant's attorney. 302 Any attorney who issues a subpoena for the attendance of witnesses must, at the time of issuance, file with the clerk the names and addresses of these witnesses except to the extent that their names and addresses are protected under section 19.2-11.2. 303 However, failure to follow the statute does not require exclusion of the witnesses' testimony. 304 The Virginia Code also provides a mechanism for securing the attendance of witnesses from or for another state. 305

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The subpoena must: (i) be directed to an appropriate officer or officers; (ii) name the witness to be summoned; (iii) state the name of the court and the title, if any, of the proceedings; (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena; and (v) state on whose application the subpoena was issued. 306

Various sections of the Virginia Code 307 dealing with the obligation of a witness to respond to a subpoena in civil cases also apply to criminal cases, except that a witness in a criminal case is obliged to attend and may be proceeded against for failure to do so, even when the witness has received no prior payment or offer of payment for attendance, mileage, or costs. 308 A witness must be allowed a proper compensation for attendance and travel. 309

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