Can a right be less than the sum of its parts? How the conflation of compulsory process and due process guarantees diminishes criminal defendants' rights.

AuthorKime, Stacey


The Supreme Court has consistently held that a criminal defendant has a constitutional fight to "a meaningful opportunity to present a complete defense" through the presentation of exculpatory evidence and testimony. (1) In articulating the scope of the fight and its constitutional source, however, the Court's jurisprudence demonstrates a total lack of clarity and consistency. Early cases held that the fight to present evidence derived from the Fifth and Fourteenth Amendments' Due Process Clauses, (2) which guarantee a criminal defendant the fight to a trial that comports with "fundamental fairness." (3) Over the years, the fundamental fairness doctrine evolved to guarantee a criminal defendant several specific procedural rights, (4) including the "right to be heard" by presenting exculpatory evidence and testimony at trial. (5)

In 1967, the Supreme Court replaced its Fifth Amendment "fundamental fairness" doctrine with a new--and textually questionable--interpretation of the Sixth Amendment Compulsory Process Clause. (6) In Washington v. Texas, (7) the Court found that a Texas rule that prohibited the defendant's alleged accomplice from testifying on the defendant's behalf deprived the defendant of his fight to offer testimony from favorable witnesses. (8) The Court quoted one of its "fundamental fairness" cases, reiterating that the right to offer testimony of a witness is "in plain terms the right to present a defense," and one of "the most basic ingredients" of due process of law. (9) The Court, however, struck down the rule on an alternate ground. Guided by a historical analysis of a defendant's right to present testimony, the Court held that the Texas rule violated the Sixth Amendment Compulsory Process Clause. (10) After Washington, criminal defendants seemingly had both a due process right and a compulsory process right to present exculpatory evidence.

This Note argues that by incorrectly injecting a due process right into the Sixth Amendment, the Washington doctrine conflates and undermines the framework that it purported to enhance. (11) Part I provides an overview of the right to present defense evidence, identifying the right's inceptions in due process and compulsory process, and highlighting illustrations of the Supreme Court's incoherent post-Washington analytical approach. Part II first argues that Washington and its progeny are based on an incorrect understanding of the procedural framework underlying criminal defendants' constitutional rights. It then demonstrates the need for a clarified doctrine that would better protect defendants' rights. Finally, Part III proposes an analytical framework that is more doctrinally sound and that will provide criminal defendants with heightened constitutional rights.


    The Court's decision in Washington v. Texas set the stage for a number of doctrinal problems that are discussed in Part II. A thorough understanding of Washington's problematic consequences requires a discussion of the Court's right-to-defend jurisprudence. This Part, thus, provides an overview of the evolution of the defendant's fight to present evidence, highlighting the landmark cases and analyzing their significance within the greater framework of relevant Supreme Court jurisprudence.

    Part A surveys the Supreme Court's original standard for evaluating challenges to a defendant's right to present exculpatory evidence: the "fundamental fairness" guarantee of due process. Part B first details the Supreme Court's landmark decision in Washington v. Texas, which introduced the current approach to compulsory process analysis. It then points out some of the questions that Washington left unresolved. Part C attempts to clarify Washington by analyzing the Supreme Court's subsequent jurisprudence. Part D provides a brief summary of the settled boundaries of the doctrine, ultimately concluding that the Court views the Compulsory Process and Due Process Clauses as providing alternative sources for protecting essentially identical guarantees.

    1. The Right to Present Exculpatory Evidence Before Washington v. Texas

      Shortly after the passage of the Fourteenth Amendment, the Supreme Court interpreted due process to include a guarantee of "fundamental fairness" in criminal trials. (12) In developing the fundamental fairness doctrine, three characteristics of the Supreme Court's decisions are noteworthy.

      First, the Court consistently applied a "totality of the circumstances" analysis in determining whether the exclusion of defense evidence was an arbitrary restriction on a defendant's fight to due process. (13) Second, the standard for evaluating a defendant's due process rights involved substantial deference to local governments' prerogatives to manage their own criminal justice systems. Thus, for instance, the Court explained that the inquiry "must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." (14)

      Third, the Supreme Court often strove to give the fundamental fairness guarantee a content that was independent of other provisions of the Bill of Rights. (15) In 1897, for example, the Supreme Court applied the Due Process Clause to procedural trial guarantees and held that due process secures an "inherent fight of defence," (16) signifying without doubt an included right to be heard in one's defense. (17) The fight to due process provided the general assurance that a defendant receive "fundamental justice," (18) and the Court cautioned against interpreting due process in a way that would render this guarantee "an empty formality." (19) Over the years, the fundamental fairness doctrine evolved to guarantee the "right to be heard in one's defense" by presenting exculpatory evidence and testimony of wit nesses. (20)

      In 1948, In re Oliver (21) summarized and clarified the development of the Court's due process jurisprudence. Then, guided by an analysis of its precedents, the Court held that due process grants criminal defendants a broad right to present defense evidence and testimony:

      A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense--a right to his day in court--are basic in our system of jurisprudence; and these fights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel. (22) In sum, by the mid-twentieth century, the Constitution guaranteed a defendant's right to put on a defense using testimony and evidence, the arbitrary denial of which violated due process.

    2. Washington v. Texas

      In 1967, the Supreme Court altered the procedural framework for evaluating the right to introduce evidence by holding that the exclusion of a key defense witness's testimony violated the Sixth Amendment's Compulsory Process Clause, rather than the due process guarantee of fundamental fairness.

      1. The Court's Decision in Washington v. Texas

        The case originated in a Texas state court, where the defense claimed that Washington's alleged accomplice had committed the fatal shooting for which Washington was on trial. (23) When the defense attempted to call the alleged accomplice, the court prohibited the testimony, applying a rule that barred a defendant's alleged accomplice from testifying on the defendant's behalf. (24) On appeal, the United States Supreme Court reaffirmed that a criminal defendant's right to be heard--which includes the right to offer testimony of favorable witnesses--is one of the most basic elements of due process of law. (25) Striking down the Texas rule, the Court recognized that the right to offer testimony was a clear mandate of due process, and it was "in plain terms the right to present a defense." (26) In support, the Court relied on several prior cases that had vindicated defendants' rights under the "fundamental fairness" doctrine. However, the Court suggested that its due process discussion was of little relevance to its ultimate decision, holding that the Texas rule violated the Sixth Amendment's Compulsory Process Clause, (27) which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor...." (28) The Court reasoned that the right to compel a witness's attendance necessarily includes an implied right--located directly in the Compulsory Process Clause--to present the witness's testimony. (29) Otherwise, the defendant would have "no right to use" the witness's testimony, (30) and compulsory process for a witness's attendance would be futile. (31)

      2. Washington v. Texas's Unresolved Questions

        The Washington Court left several questions unanswered. Although Washington found a right to present evidence in the Compulsory Process Clause, the Court's opinion failed to provide meaningful guidance to the lower courts on how to analyze violations of the Clause after Washington. The right to present evidence is regulated by rules of evidence that require exclusion of entire bodies of evidence--namely the hearsay doctrine and testimonial privileges. (32) How were courts to strike an appropriate balance between protecting a defendant's right to introduce evidence, and respecting long-standing trial rules governing evidentiary exclusions? For years leading up to Washington, the Court applied a due process analysis in addressing this very issue, and its decisions under due process were characterized by an express attitude of deference toward lower-court judges. Washington's opinion itself suggested the continued validity of due process as a source of a seemingly parallel right. Was the new compulsory process right in some way more protective of a defendant's right to present testimony than the traditional due process right? If so, in which ways are the two rights distinguishable? If not--i.e., if compulsory process conferred no...

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