II. Compulsory Process and the Supreme Court

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

II. Compulsory Process and the Supreme Court A. The Treason Trial of Aaron Burr

The first test of the scope of the Sixth Amendment Compulsory Process Clause occurred during the treason trial of former Vice President Aaron Burr in 1807. Burr was accused of plotting to go to war with Spain in the hope of establishing a separate government in the western states.³⁰ At issue were letters Burr sought to present in his defense, some of which were written by his archenemy, the president of the United States, Thomas Jefferson.³¹ The Jefferson administration complied with the defendant's subpoena and produced the letters, including a heavily redacted letter at the center of the controversy. Still, the defendants sought additional evidence and filed a second motion requesting the unedited letters and demanding an indefinite postponement of the trial until the evidence was produced.³²

Chief Justice John Marshall's opinion gave a defendant's right to compulsory process a broad and forceful interpretation.³³ The Chief Justice, who had been a member of the Virginia convention that advocated inclusion of the compulsory process right in the Constitution of the United States, explicitly recognized the centrality of the defendant's right "to present evidence on [his] own behalf."³⁴ Chief Justice Marshall described the core purpose of compulsory process as enabling a defendant to present evidence in support of his defense and to obtain subpoenas before and after indictment so that he can prepare his defense.³⁵ According to the Burr Court, the defendant's right to obtain information "essential to the defense" outweighed the president's interest in secrecy.³⁶ The Court's conclusion that the right secured by the Compulsory Process Clause "must be deemed sacred by the courts" gave force and meaning to the new right of compulsory process.³⁷

B. Incorporation of the Right to Compulsory Process to the States

After the Burr trial, the Supreme Court rarely considered the Compulsory Process Clause for over 150 years until the seminal case of Washington v. Texas,³⁸ which incorporated the right as a fundamental element of due process and made it applicable to the states via the Fourteenth Amendment.³⁹ There, the Court rejected a Texas rule that prevented a defendant from obtaining testimony from any alleged accomplice.⁴⁰

Chief Justice Warren, who wrote for the Court, found that state efforts to avoid unreliable testimony cannot violate "[t]he right of an accused to have compulsory process for obtaining witnesses in his favor[, which] stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States."⁴¹ The Court also specifically noted that the Clause affords defendants the right to offer the testimony of witnesses and the right to compel reluctant witnesses to testify via the subpoena power of the courts.⁴² The purpose of the Compulsory Process Clause, according to the Court, is "in plain terms" the protection of "the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies."⁴³

C. Defining the Scope of the Right to Compulsory Process 1. The Right to Compel Testimony from a Former Accomplice

In Washington, Texas law prevented persons charged as principals, accomplices, or accessories in the same crime from testifying as witnesses for each other, although they could testify for the state.⁴⁴ The defendant (Washington) had sought to call an alleged accomplice (Fuller) to testify that Fuller fired the shotgun that fatally wounded the deceased and that Washington tried to dissuade him and ran away before Fuller fired.⁴⁵ The trial judge applied the state law and did not allow Fuller to testify. Washington was convicted and his appeal was upheld by Texas Court of Criminal Appeals.⁴⁶ According to the U.S. Supreme Court, the Texas law precluding accomplice testimony was unconstitutional because the "Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use."⁴⁷

Five years later, the Court confronted a related question in Cool v. United States⁴⁸ and applied a similar rationale. There, the jurors had been instructed that they should reject exculpatory testimony for the defense provided by an alleged accomplice unless they found the testimony true beyond a reasonable doubt.⁴⁹ The Cool Court held that this jury instruction violated the Compulsory Process Clause as construed in Washington v. Texas by preventing the defense from obtaining relevant exculpatory evidence because it might be unreliable.⁵⁰One commentator has suggested that it is "natural to draw the inference from the Cool decision that the Court viewed the impermissible jury instruction as conflicting with Washington's prohibition against assuming that some [defense] witnesses' testimonies are not worthy of belief."⁵¹

2. The Right to Compel Privileged or Confidential Information

In Pennsylvania v. Ritchie,⁵² the defendant was charged with the rape of his teenage daughter. The defendant sought to compel the production of records maintained by the state department of children and youth services.⁵³ The prosecutor responded by arguing that the records were privileged.⁵⁴

When the case reached the Supreme Court, Justice Powell began by noting that after United States v. Burr was decided in 1807, "the Compulsory Process Clause was rarely a factor in this Court's decisions during the next 160 years."⁵⁵ The Ritchie Court found that the Compulsory Process Clause guarantees, "at a minimum[,] . . . [that] criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt."⁵⁶ However, the Court opted to analyze the defendant's claim under the Due Process Clause of the Fourteenth Amendment because "compulsory process provides no greater protections in this area than those afforded by due process."⁵⁷ Thus, the justices "need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment."⁵⁸

In a decision that explicitly balanced the defendant's rights against the state privilege, the Richie Court concluded that allowing full disclosure of the Department of Children and Youth Services files would "sacrifice unnecessarily the State's compelling interest in protecting its child abuse information."⁵⁹ Under these circumstances, in camera review by the trial court would serve to protect both the defendant's right to discovery of exculpatory evidence that "probably would have changed the outcome of the trial"⁶⁰ and the state's interest in protecting the sensitive information.⁶¹

An increasingly important limitation for compelling confidential information is the Classified Information Procedures Act, enacted in 1980. It provides for special procedural mechanisms in cases where information deemed by the government as sensitive to national security might otherwise be admitted into evidence in a criminal trial.⁶² Of particular importance, section 6 allows the government to challenge the "use, relevance, or admissibility of classified information" to be offered at trial in a special hearing that the court is required to con-duct.⁶³ The hearing may be conducted in camera.⁶⁴ Even if the court finds that the evidence would normally be admissible, the government may move ex parte to have the classified information substituted by a government admission or a summary of the information, which the court must grant if it finds that disclosure "would cause identifiable damage to the national security of the United States."⁶⁵

3. The Right to Compel Exculpatory Evidence

Although compulsory process guarantees defendants the right to call witnesses into court, it does not necessarily include, in all cases, the right to compel the prosecution to turn over exculpatory evidence.⁶⁶ In United States v. Nixon, the Supreme Court balanced concerns of executive privilege against the defendant's right to compulsory process:

The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated.⁶⁷

The Nixon Court decided that "[t]he President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases."⁶⁸ The justices there clearly suggested that compulsory process could require the production of evidence relevant to the defense. Subsequently, some state courts decided that defendants have the right to access "present exculpatory evidence, including impeachment evidence, in the possession of a third party."⁶⁹ Nevertheless, the vast majority of production of evidence issues have been evaluated under the Due Process Clause.⁷⁰

D. Limiting the Right to Compulsory Process 1. Discovery Sanctions

The Supreme Court did not address the question of limits to a defendant's right to compulsory process until the late 1980s. In Taylor v. Illinois,⁷¹ defense counsel had violated a state reciprocal discovery rule that required the defendant and prosecutor to reveal the names and addresses of their witnesses before trial. On the second day of trial, defense counsel sought to amend his pretrial witness list.⁷² He...