Right to Present Defense

The Constitution guarantees a criminal defendant the right to present a complete defense to the charges against him or her. The right to present a defense is not explicitly stated in the Constitution, and the Supreme Court did not speak of a general right of criminal defendants to present evidence until the twentieth century. Indeed, many American jurisdictions placed severe restrictions on the ability of defendants to present evidence in their defense until relatively recent times. For example, many jurisdictions in the nineteenth century flatly precluded criminal defendants from testifying in their own behalf because it was thought that they were likely to perjure themselves. It was not until the Supreme Court’s 1960 decision in Ferguson v. Georgia, 365 U.S. 570 (1961), that all such bans were finally declared unconstitutional.

By the middle of the twentieth century, however, the Supreme Court had begun to recognize a general right to present a defense and, over the next several decades, the Court found the right to be implied by several different constitutional provisions. In 1948, in In re Oliver, 233 U.S. 257 (1948), the Supreme Court declared that the Due Process Clause provides a criminal defendant ‘‘an opportunity to be heard in his defense,’’ including the right ‘‘to offer testimony.’’ In Taylor v. Illinois, 484 U.S. 400 (1988), the Court held that the Sixth Amendment Compulsory Process Clause guarantees defendants the right not only to subpoena favorable witnesses but also to present their testimony. Finally, in Rock v. Arkansas, 483 U.S. 44 (1987), the Court recognized that the Fifth Amendment Self- Incrimination Clause, as well as the Compulsory Process and Due Process Clauses, implies that a criminal defendant has the right to present his or her testimony as part of the defense case.

Litigation over the right to present a defense usually arises when a jurisdiction’s evidentiary rules preclude criminal defendants from presenting certain types of evidence in their defense. Since the right to present a defense is of constitutional magnitude, the Supreme Court has held that rules of evidence and criminal procedure must occasionally yield to a defendant’s need to introduce evidence in his or her favor.

Therefore, the Court concluded in Chambers v. Mississippi, 410 U.S. 284 (1973), that the defendant’s due process right to present a defense outweighed a state rule against hearsay evidence that had been invoked to exclude testimony that another man had confessed to the crime for which the defendant was on trial. Similarly, the Court declared in Washington v. Texas, 388 U.S. 14 (1967), that the defendant’s Compulsory Process Clause right to obtain witnesses in his favor trumped a state rule barring the defendant from presenting the testimony of his or her alleged accomplices and codefendants. In Cool v. United States, 409 U.S. 100 (1972), the Court ruled that a judge unconstitutionally burdened the defendant’s Compulsory Process Clause right to call a codefendant who testified in her favor by instructing the jury that it should be exceptionally cautious in accepting the codefendant’s testimony. The Court held in Rock that a state rule barring a witness whose testimony had been hypnotically refreshed had to yield to the defendant’s constitutional right to testify in her defense.

However, the right to present a defense is not absolute, and the Supreme Court has upheld several types of limitations on the right. First, the exclusion of defense evidence may be justified by society’s interest in conducting orderly trials. Thus, defense evidence may be excluded if the defendant fails to abide by the rules of pretrial discovery or is attempting to surprise the prosecutor unfairly. Therefore, in Williams v. Florida, 399 U.S. 78 (1970), the Court upheld state laws requiring defendants to give pretrial notice of their intent to present certain defenses, such as alibi and insanity, or face exclusion of evidence relating to those defenses; the Court has also upheld exclusion as a sanction for other types of discovery violations. In Taylor, for example, the Court affirmed a judge’s ruling excluding the testimony of a defense witness as a sanction against defense counsel who had failed to disclose his plan to call the witness until the trial was underway.

Second, a defendant’s right to present a defense may yield to local rules designed to improve the reliability of the trial process. Therefore, in United States v. Scheffer, 523 U.S. 303 (1998), the Supreme Court upheld a military justice rule that precluded the defendant from presenting polygraph evidence in his favor. The Court explained that ‘‘state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate’ to the purposes they are designed to serve.’’

Third, the Supreme Court has curtailed the right to present a defense by limiting the right to the introduction of evidence in support of the defense. The Court held in Gilmore v. Taylor, 508 U.S. 333 (1993), that the right to present a defense does not, therefore, include the right to have the judge deliver instructions to the jury in support of the defense.

Fourth, a jurisdiction may entirely eliminate the right to present a particular defense entirely by changing the law so as to eliminate the defense. For example, the Supreme Court in Montana v. Egelhoff, 518 U.S. 37 (1996), upheld a state law prohibiting defendants from proving that they lack the mental state necessary to be guilty of a crime by introducing evidence of their voluntary intoxication. The Court in Egelhoff viewed the prohibition on defense evidence of voluntary intoxication as permissible because states have traditionally been accorded the freedom to define crimes and the available defenses to those crimes.

Even with these limitations, criminal defendants still enjoy a core constitutional right to present relevant and reliable evidence in support of their defenses. Subject to reasonable rules designed to assure a fair and orderly trial, a defendant must be permitted to present favorable witnesses and evidence. The right to present a defense thus protects defendants from those local authorities who may otherwise be all too willing to tilt the scales of justice in favor of the prosecutor.

DAVID A. MORAN

References and Further Reading

• Stacy, Tom, The Search for Truth in Constitutional Criminal Procedure, Columbia Law Review 91 (1991): 1369.
• Westen, Peter, The Compulsory Process Clause, Michigan Law Review 73 (1974): 71.

Cases and Statutes Cited

• Chambers v. Mississippi, 410 U.S. 284 (1973)
• Cool v. United States, 409 U.S. 100 (1972)
• Ferguson v. Georgia, 365 U.S. 570 (1961)
• Gilmore v. Taylor, 508 U.S. 333 (1993)
• In re Oliver, 233 U.S. 257 (1948)
• Montana v. Egelhoff, 518 U.S. 37 (1996)
• Rock v. Arkansas, 483 U.S. 44 (1987)
• Taylor v. Illinois, 484 U.S. 400 (1988)
• United States v. Scheffer, 523 U.S. 303 (1998)
• Washington v. Texas, 388 U.S. 14 (1967)
• Williams v. Florida, 399 U.S. 78 (1970)

See also Chambers v. Mississippi, 410 U.S. 284 (1973); Due Process; Rock v. Arkansas, 483 U.S. 44 (1987); Self-Incrimination (V): Historical Background; Taylor v. Illinois, 484 U.S. 400 (1988); Washington v. Texas, 388 U.S. 14 (1967)