Confrontation and Compulsory Process

Constitutional Bases

Adopted in 1791, the Sixth Amendment of the U.S. Constitution guarantees the defendant in a criminal trial the right ‘‘to be confronted with the witnesses against him,’’ and ‘‘to have compulsory process for obtaining witnesses in his favor.’’

The Confrontation Clause is designed to ensure the truthfulness of witness testimony against a defendant in a criminal trial. It accomplishes this by forcing the prosecution’s witnesses to testify in front of the party on trial and by allowing the defendant’s counsel to challenge the credibility and reliability of the witness’s testimony through cross-examination.

Also, rules of evidence such as Rule 801—the Hearsay Rule—of the Federal Rules of Evidence, stems from the Sixth Amendment right to confrontation and precludes the prosecution in a criminal trial from using as evidence statements made by witnesses not actually present at trial. The U.S. Supreme Court has carved out a number of exceptions to this rule, including instances where the prosecution is able to show a good-faith, but unsuccessful, effort in getting a witness to testify. For exceptions, see Federal Rules of Evidence 801(d)(E) through 804.

The compulsory process clause provides a defendant the court’s subpoena power to compel witnesses to testify. To exercise this right, a defendant must demonstrate that the witness’s testimony would be relevant, suitable, and favorable to him or her.

The Confrontation and Compulsory Process clauses have grown in scope through a number of key U.S. Supreme Court cases. In drafting the Sixth Amendment, the Framers intended to incorporate the common law right to confrontation to prevent in the United States the type of abuses suffered by the likes of Sir Walter Raleigh in his trial in England. See, United States v. Inadi, 475 U.S. 387, 411 (1986). When John Adams was a defense attorney in a criminal case he said— ‘‘[e]xaminations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them’’: 2 Legal Papers of John Adams 207 (Wroth and Zobel eds., 1965).

The U.S. Supreme Court has found violations of the Confrontation Clause when the prosecution introduced at trial statements from accomplices and witness that were not subject to cross-examination. See, Lilly v. Virginia, 527 U.S. 116 (1999) (custodial confession of accomplice); Idaho v. Wright, 497 U.S. 805 (1990) (statements by victim to doctor made with participation of police investigating defendant); Lee v. Illinois, 476 U.S. 530 (1986) (accomplice’s custodial confession); Berger v. California, 393 U.S. 314 (1969) (per curiam) (testimony from preliminary hearing); Brookhart v. Janis, 384 U.S. 1 (1966) (confession of accomplice taken during interrogation); and Pointer v. Texas, 380 U.S. 400 (1965) (testimony at preliminary hearing).

In the well-known case of Bruton v. United States, 391 U.S. 123 (1968), the Court held that in a joint trial the Confrontation Clause prohibits the admission of the codefendant who does not testify when the confession also incriminates the defendant. See also Roberts v. Russell, 392 U.S. 293 (1968) (per curiam); Cruz v. New York, 481 U.S. 186 (1987); and, Gray v. Maryland, 523 U.S. 185 (1998). But, the Court has also allowed the use of prior testimony from a witness against the accused because the witness was subject to cross-examination during the prior testimony. See Ohio v. Roberts, 448 U.S. 56 (1980), one of the most significant cases in confrontation jurisprudence. And, in Bourjaily v. United States, 483 U.S. 171 (1987), the Court allowed co-conspirator’s statement to another co-conspirator); United States v. Inadi, 475 U.S. 387 (1986) (same); Dutton v. Evans, 400 U.S. 74 (1970) (same).

In the recent confrontation landmark case of Crawford v. Washington, 541 U.S. 36 (2004), the Court reaffirmed a principle in one of its line of cases that the Sixth Amendment right to confrontation precludes the admission of ‘‘testimonial’’ hearsay unless the witness is unavailable and there was a prior opportunity for full cross-examination. This controversial decision has been viewed as a double-edged sword by commentators. See Crawford v. Washington: A Critique. Miguel A. Mendez; Stanford Law Review, Vol. 57, 2004.

Compulsory Process

In Washington v. Texas (388 U.S. 14 (1967)), the Court found that through the Fourteenth Amendment, the Sixth Amendment compulsory process clause extends to criminal trials in state courts. It further held that principals, accomplices, and accessories to a crime might be introduced as witnesses for co-defendants to the same crime(s). In Washington the Court stated of this concept:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms 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. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law . . . .

Washington at 19-23. This right is not absolute. The compulsory process right is not absolute, and a court may refuse to allow a defense witness to testify where defense counsel did not identify the desired witness to gain a tactical advantage. See Taylor v. Illinois, 484 U.S. 400 (1988). See also United States v. Wallace, 32 F.3d 921 (5th Cir. 1994).

The compulsory process clause has also been the subject of debate in two notorious cases involving the U.S. President—Clinton v. Jones, 520 U.S. 681 (1997) and United States v. Nixon, 418 U.S. 683 (1974).

EZEKIEL E. CORTEZ

References and Further Reading

• Amar, Akhil Reed. The Constitution and Criminal Procedure. 129–131 & n.194, 1997.
• Berger, Margaret A., The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, Minn. L. Rev. 76 (1992): 559.
• Dickinson, Joshua C., The Confrontation Clause and the Hearsay Rule: The Current State of a Failed Marriage in Need of a Quick Divorce, Creighton L. Rev. 33 (2000): 763.
• Friedman, Richard D., Confrontation: The Search for Basic Principles, Geo. L. Rev. 86 (1998): 1011.
• ‘‘The Voice Of Adjudication’’: The Sixth Amendment Right To Compulsory Process Fifty Years After United States Ex Rel. Touhy v. Ragen, Milton Hirsh, Florida State University Law Review Vol. 30:81.

See also Confrontation Clause; Defense, Right to Present