The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same "privileges of witnesses" as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal BILL OF RIGHTS bifurcated what New Jersey called the "privileges of witnesses" into two distinct but related rights: the Sixth Amendment right of the accused "to be confronted with the witnesses against him," and his companion Sixth Amendment right to "compulsory process for obtaining witnesses in his favor." The distinction between witnesses "against" the accused and witnesses "in his favor" turns on which of the parties?the prosecution or the defense?offers the witness's statements in evidence as a formal part of its case. The CONFRONTATION clause establishes the government's obligations regarding the production and examination of witnesses whose statements the prosecution puts into evidence either in its case in chief or in rebuttal. The compulsory process clause establishes the government's obligations regarding the production and examination of witnesses whose statements the defendant seeks to put into evidence in his respective case.
The constitutional questions of compulsory process are twofold: What is "compulsory process?" Who are the "witnesses in his favor" for whom a defendant is entitled to compulsory process? The first is the easier of the two questions to answer. "Compulsory process" is a term of art used to denominate the state's coercive devices for locating, producing, and compelling evidence from witnesses. A common example is the SUBPOENA ad testificandum, a judicial order to a person to appear and testify as a witness, or suffer penalty of CONTEMPT for failing to do so. The right of compulsory process, in turn, is the right of a defendant to invoke such coercive devices at the state's disposal to obtain evidence in his defense. The right of compulsory process is therefore no guarantee that defendants will succeed in locating, producing, or compelling witnesses to testify in their favor; it does not entitle defendants to the testimony of witnesses who have died or otherwise become unavailable to testify through no fault of the state. Rather, it assures defendants that the state will make reasonable, good-faith efforts to produce such requested witnesses as are available to testify at trial. It gives a defendant access to the same range of official devices for producing available evidence on his behalf as the prosecution enjoys for producing available evidence on its behalf.
The more significant question for a defendant is: Who are the witnesses for whom a defendant is entitled to compulsory process? What law defines "witnesses in his favor"? Early commentators argued that a defendant might claim compulsory process only with respect to witnesses whose testimony had already been determined to be admissible, according to the governing rules of evidence in the respective jurisdiction. The Supreme Court in its seminal 1967 decision in Washington v. Texas rejected...