The Compulsory Process Clause

In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor. . . .

—Judge Joel M. Carson III & Jefferson F. Serfass

Introduction

On its face, the Compulsory Process Clause narrowly provides criminal defendants the right to invoke the court’s subpoena power to compel otherwise unwilling witnesses to come to court and testify. But there is a rich history underlying the clause’s seemingly innocuous language. Early Americans likely understood this provision as enshrining a broader set of common-law procedural guarantees. The Compulsory Process Clause expressly protects an accused’s right to compel testimony from material witnesses, and implicitly protects other rights of the accused: the right to call his or her own witnesses; the right not to be tried before those witnesses arrive; the right to question those witnesses under oath; and the right to compel those witnesses to bring with them any documents material to their testimony.

History Before 1787

The Compulsory Process Clause, like other Sixth Amendment guarantees, arose from the abuses suffered by criminal defendants under the early common-law rules governing witnesses.¹ As recently as the late fifteenth century, English courts refused to hear any exculpatory testimony from defense witnesses, even from those present in the courtroom and willing to testify. Judges often concluded that allowing testimony against the Crown would be improper.² This prohibition eventually yielded to the practice of allowing defense witnesses to testify, but refusing to swear them in.³ Of course, criminal defendants still suffered because those same courts would then instruct their juries to give more weight to sworn testimony, which only the Crown’s witnesses could provide.⁴ Even after the common law finally embraced the idea that defendants should be able both to call and to swear in their own witnesses, the Crown continued to convict and execute innocent defendants because those defendants had no right to compel unwilling witnesses to testify at their trials.⁵

The trial of William Ireland, Thomas Pickering, and John Grove in 1678 illustrates the fundamental unfairness of these early common-law practices.⁶ The Crown charged Ireland with high treason, accusing him of conspiring with Pickering and Grove to kill King Charles II.⁷ (See Essay No. 137.) The Crown’s evidence consisted of only two men’s testimony. Oates and Bedloe swore that “in August” they attended a meeting in London where Ireland and the others agreed to assassinate the king.⁸ Ireland denied the accusations, contending that he was in Staffordshire, a town roughly 150 miles outside of London, during the alleged meeting.⁹

Although Ireland had the right to call witnesses, the court refused to let him contact anyone until the morning of his trial.¹⁰ Then, at trial, when Ireland named the witnesses he sought to call and pleaded for time for them to arrive, the presiding judge proceeded without them.¹¹ All three defendants were convicted and executed.¹² Shortly before his execution, Ireland proclaimed that “a hundred and more saw me in Staffordshire; therefore, how I should be [guilty of treason] I do not well know or understand.”¹³ The injustice of his conviction and execution became apparent when witnesses ultimately confirmed Ireland’s alibi and resulting innocence at Oates’s own perjury trial seven years later.¹⁴

Scholars contend that Ireland’s story and others like it drove Parliament to grant criminal defendants the right to call witnesses and compel them to testify under oath.¹⁵ These stories also reached the American colonies in Salmon’s State Trials (1765) and widely circulated pamphlets.¹⁶ So too did news of the new rules permitting defendants to compel the appearance of favorable witnesses. Sir William Blackstone opined that the accused, at least in high treason cases, “shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him.”¹⁷

After independence, nine states included some variation of a compulsory process clause in their constitutions.¹⁸ Three states granted the accused the right “to call for evidence in his favour.”¹⁹ Two others provided for the right to produce “all proofs that may be favorable.”²⁰ North Carolina guaranteed the right “to confront the accusers and witnesses with other testimony.”²¹ Delaware protected the accused’s right “to examine evidence on oath in his favour.”²² New Jersey promised that “all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to.”²³ Maryland granted the accused both the right “to examine [his] witnesses . . . on oath” and the right “to have process for his witnesses.”²⁴

Adoption of the Sixth Amendment

During the First Congress, Representative James Madison of Virginia drafted the Compulsory Process Clause in language that most closely mirrored Blackstone’s.²⁵ The text provided that “the accused shall enjoy the right . . . to have a compulsory process for obtaining witnesses in his favor. . . .”²⁶ Congress made no substantive changes and debated it only briefly.²⁷ The states adopted Madison’s draft without much recorded debate.²⁸ That the amendment was so uncontroversial strongly indicates that there was a wide understanding that the Compulsory Process Clause captured the same common-law rights that the various state constitutions aimed to protect.²⁹

The Aaron Burr Treason Trial

The first major Compulsory Process Clause interpretation came in United States v. Burr (1807). Chief Justice John Marshall, sitting as a trial judge, presided. The United States charged former Vice President Aaron Burr with treason, alleging that Burr planned to seize the United States’ western territories and secede from the federal government.³⁰ The prosecution relied heavily on General James Wilkinson’s oral testimony and a letter Wilkinson sent to then-President Thomas Jefferson that purportedly established Burr’s guilt beyond doubt.³¹ Burr and his attorneys vigorously denied the charges.

When the trial began, Burr sought to compel the President to produce the Wilkinson letter.³² The government argued that the Compulsory Process Clause granted Burr only the right to compel the President’s oral testimony because the clause referred to “witnesses,” not “documents.”³³

Marshall rejected this argument and criticized the government’s “literal distinction” as “too attenuated to be countenanced in the tribunals of a just and humane nation.”³⁴ Thus, he held that the accused’s constitutional right to compel the attendance of witnesses must extend to “their bringing with them such papers as may be material in the defense.”³⁵

Ultimately, Jefferson produced only a redacted version of the letter.³⁶ As it turned out, the letter was a sham—written by Wilkinson to vilify Burr and hide Wilkinson’s own treason.³⁷ The jury acquitted Burr.³⁸ Marshall’s Compulsory Process Clause interpretation remains a seminal source for assessing the clause’s original public meaning.

Modern Precedent

More than 150 years after Burr’s trial, the U.S. Supreme Court provided the second major Compulsory Process Clause interpretation and application in Washington v. Texas (1967). In that case, Texas charged Jackie Washington with murder.³⁹ Only Washington and another man, Will Fuller, witnessed the shooting. Texas, not knowing which of them truly committed the murder, arrested and charged both of them.⁴⁰ At Washington’s own trial, he testified that Fuller murdered the victim and that he (Washington) had tried unsuccessfully to stop Fuller.⁴¹ Washington sought to call Fuller to the witness stand to support his story. However, two Texas statutes barred persons charged or convicted as co-participants in the same crime from testifying in each other’s defense.⁴² The trial court therefore excluded Fuller’s testimony.⁴³ The jury convicted Washington, and the relevant appellate courts affirmed.⁴⁴

The Supreme Court reversed, holding unanimously that the Texas statutes violated the Constitution.⁴⁵ The Court found that the Framers designed the Compulsory Process Clause, in part, to make the testimony of a defendant’s witness admissible on his behalf. Therefore, the state could not make all defense testimony inadmissible as a matter of procedural law.⁴⁶ The Court concluded that “arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief” violate the Compulsory Process Clause in the same way.⁴⁷

Washington laid the foundation for modern Compulsory Process Clause jurisprudence, but may be questionable on originalist grounds. Scholars dispute whether Americans at the time of the Sixth Amendment’s ratification would have understood the clause to reach the two statutes the Court declared unconstitutional in Washington.⁴⁸ Moreover, federal courts appear to have enforced similar statutes declaring certain witnesses incompetent well into the nineteenth century.⁴⁹ Yet, the Texas statutes, in which the prosecution had the right to call a key witness, but the defense did not, plainly defy Chief Justice Marshall’s ruling from Burr: “with respect to the means of compelling the attendance of witnesses . . . the prosecution and the defense are placed by the law on equal ground.”⁵⁰

To establish a Compulsory Process Clause violation under current law, the accused must show (1) that the witness’s testimony the accused sought to introduce would have been “favorable and material,” and (2) that the government’s exclusion was “arbitrary” or “disproportionate” to the evidentiary purposes advanced by the exclusion.⁵¹ Unlike the accused’s right to confront adverse witnesses, the accused must try to call a favorable witness to trigger his or her rights under the Compulsory Process Clause.⁵²

Open Questions

• With the increase in remote court proceedings, does the Compulsory Process Clause grant defendants the right to compel in-person testimony?
• Under what circumstances, if any, may a defendant invoke the Compulsory Process Clause to secure the testimony of an expert witness?

This composition is not a statement by the United States Court of Appeals for the Tenth Circuit or by Latham & Watkins LLP. Nor does this essay necessarily reflect the views of the court or the firm.

1. Washington v. Texas, 388 U.S. 14, 19 (1967). ↩︎
2. Peter Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 83 n.40 (1974). ↩︎
3. 4 Blackstone 355. ↩︎
4. Id. ↩︎
5. Westen, supra at 85. ↩︎
6. Id. at 85 n.51; William Cobbett, 7 Cobbett’s Complete Collection of State Trials 79 (1810). ↩︎
7. Sir James Stephen, 1 A History of the Criminal Law of England 388 (1883). ↩︎
8. Id.; Cobbett, supra, at 97, 109. ↩︎
9. Cobbett, supra at 112, 121; Stephen, supra at 388. ↩︎
10. Cobbett, supra at 121. ↩︎
11. Id. ↩︎
12. Stephen, supra at 388; Cobbett, supra at 141. ↩︎
13. Cobbett, supra at 141. ↩︎
14. Id. at 124; Westen, supra at 85 n.15. ↩︎
15. Westen, supra at 89–90; 4 Blackstone 354. ↩︎
16. Irving Brant, The Bill of Rights, Its Origin and Meaning 34–35 (1965). ↩︎
17. Westen, supra at 76; 4 Blackstone 354; Brant, supra at 93. ↩︎
18. Taylor v. Illinois, 484 U.S. 400, 408 n.13 (1988). ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. N.C. Const. of 1776, Decl. of Rights, art. VII. ↩︎
22. Del. Decl. of Rts. of 1776, art. XIV. ↩︎
23. N.J. Const. of 1776, art. XVI ↩︎
24. Md. Const. of 1776, art. XIX. ↩︎
25. Westen, supra at 97–98 n.114. ↩︎
26. 1 Annals of Cong. 452 (1789). ↩︎
27. Westen, supra at 98 n.115. ↩︎
28. Stacey Kime, 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, 48 Am. Crim. L. Rev. 1501, 1517 (2011). ↩︎
29. Westen, supra at 100. ↩︎
30. Id. at 101; Evan Andrews, Aaron Burr’s Notorious Treason Case, History (Feb. 19, 2025), https://perma.cc/CA8V-Y3SX. ↩︎
31. United States v. Burr, 25 F. Cas. 30, 31–32 (C.C.D. 1807). ↩︎
32. Id. at 30. ↩︎
33. Id. at 32, 34. ↩︎
34. Id. at 35. ↩︎
35. Id. ↩︎
36. Josh Blackman, Symposium: It Must Be Nice to Have John Marshall on Your Side, SCOTUSBlog (July 10, 2020), https://perma.cc/SE2W-RX3A. ↩︎
37. Andrews, supra; Matthew L. Harris & Jay H. Buckley, Zebulon Pike, Thomas Jefferson, and the Opening of the American West 212–13 (2012). ↩︎
38. Harris & Buckley, supra at 213; Westen, supra at 107. ↩︎
39. 388 U.S. 14, 15 (1967). ↩︎
40. Id. at 16. ↩︎
41. Id. ↩︎
42. Id. ↩︎
43. Id. at 17. ↩︎
44. Id. ↩︎
45. Id. ↩︎
46. Id. at 22. ↩︎
47. Id. ↩︎
48. Westen, supra at 113–14; Kime, supra at 1502, 1516–21. ↩︎
49. Washington, 388 U.S. at 21–22 (citing United States v. Reid, 53 U.S. 361 (1852)). ↩︎
50. Burr, 25 F. Cas. at 33. ↩︎
51. Makiel v. Butler, 782 F.3d 882, 907 (7th Cir. 2015). ↩︎
52. Taylor, 484 U.S. at 410. ↩︎