I. Historical Foundations of the Compulsory Process Clause

LibraryThe Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)
I. Historical Foundations of the Compulsory Process Clause
A. Development of Compulsory Process in England

Nestled near the end of the Sixth Amendment—but not to be forgotten—the Compulsory Process Clause enshrines the defendant's right to compel, through the power of a court's subpoena, a witness to give sworn testimony in order to present an adequate defense.2

When the Founders crafted the Sixth Amendment, they did not carry forward ages-old English common law. Under ancient civil law, the accused had no opportunity to rebut witnesses or to present his own.3 As the modern trial started to develop during the fifteenth century, courts "began to separate the duty of a witness from the duty of a juror, allowing for independent witnesses and jurors without knowledge of the case."4 At this time, defendants had the right to address the jury and provide their own unsworn testimony, but they had no other trial rights.5 In fact, English defendants could not call witnesses, even if the witnesses were present in the courtroom and willing to testify.6 As England entered the seventeenth century, courts began to allow defendants to call witnesses who could provide unsworn testimony on their behalf, which slightly blunted the power imbalance skewed to favor the Crown.7

It was not until the seventeenth century, after a series of high-profile treason trials and the Puritan rebellion, that criminal procedure reforms began to make their way through the British Parliament.8 Although the Restoration briefly interrupted these developments, the widely known abuses of this period may have strengthened the protections contained in the Bill of Rights of 1689.9 In 1695, the British Parliament enacted a statute granting a range of rights to those accused of treason, including the right to compel sworn testimony from reluctant witnesses. Six years later, Parliament extended these rights to all felony defendants.10 Thus, by the time of the American Revolution, the two principal prongs of compulsory process—the defendant's right to compel witnesses and to obtain their sworn testimony—were firmly entrenched in English law.11

B. Development of Compulsory Process during the American Colonial and Revolutionary Periods

American colonists, who were still British subjects, kept abreast of criminal procedure developments in England.12 During the tumultuous Stuart period of the seventeenth and early eighteenth centuries, which was "experienced on both sides of the Atlantic,"13 the colonists followed and supported a range of legal reforms.14 The most progressive colony was Pennsylvania, which may be attributable to the fact that its founder William Penn "had been a criminal defendant in England subject to the panoply of limitations on his right to present a defense."15 By 1750, Pennsylvania, along with Maryland, Massachusetts, and Virginia, allowed defendants to subpoena witnesses, order them to the stand, and elicit their sworn testimony for the defense.16 In 1769, when Parliament debated a proposal "authorizing Americans charged with treason to be transferred to England for trial[,]. . . . [t]he Virginia House of Burgesses howled in protest. . . . immediately pass[ing] a series of resolutions condemning it as highly derogatory of the rights of British subjects."17 By granting greater rights to the criminal defendant than were available in England, the colonies were expressing their specific disapproval of the possibility that they might be tried in England and their general and increasing alienation from...

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