Archives : 2005 : January
The Sixth Amendment Right To Compulsory Process of Witnesses: Compulsory Does Not Always Mean Mandatory and Other Quirks of Due Process
By Swazi Taylor, Esq. and Natalie Banach
The Constitution of the United States, signed on September 17, 1787, still remains the cornerstone of any free societys system of justice. The civil liberties guaranteed to every American citizen are contained within the Bill of Rights of the Constitution, namely Amendments I – X (one through ten). These federal constitutional rights are guaranteed equally to all citizens of each state through the Fourteenth Amendment. The protections of the Fourth, Fifth and Sixth Amendments typically apply when an U.S. citizen is suspected or accused of a crime within the U.S. These rights range from the right to be secure in our homes, to the right to trial by a jury of our peers, the right to confront witnesses, the right to demand the production of evidence, the right to remain silent, the right to counsel and the right to due process of law. The essence of each of the rights enumerated in these Amendments is to ensure that the accused receives equal and fair treatment under the law.
Defendant’s Rights When Charged with a Crime
When a criminal accusation is filed against an individual, that individuals rights are impacted and hang in the balance while the proceedings continue. Therefore, contained within the criminal justice system, are checks and balances to ensure that the accused receives fair and equal treatment. Some of these checks and balances are rights guaranteed by the United States Constitution. Some are rights guaranteed by the State Constitutions and some are contained within ARTICLESs and case law. Wherever these protections are found, there are two fundamental principles that prevail: that the accused is cloaked in a presumption of innocence and that this presumption continues unless and until the prosecution proves beyond a reasonable doubt that the accused is guilty of the crime(s) charged. These are the basic tenets of any American criminal justice system, federal or state.
The trial of an accused in the criminal justice system is governed by many rules of law, among which are rules of evidence. The basic tenet of the criminal system is to ensure the accused a fair trial. To that end, the Sixth Amendment provides in relevant part:
the accused shall enjoy the right to a speedy and public trial, by an impartial juryandbe informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (Emphasis supplied.)
Right to Compulsory Process
It is the right of compulsory process, which is at the heart of this writing. This right to produce to compel the attendance of witnesses at trial is so inextricably intertwined with the rights to a jury trial and to present a defense that it too must be constitutionally required. The right to establish a defense is a fundamental part of due process. Thus, to ensure that the right exists in substance, an accused must be afforded a legal vehicle by which to present such a defense. Compulsory process, or the right to use the courts subpoena power, is that vehicle. However, this right is not without its limitations. Consequently, in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the United States Supreme Court held that in deciding whether or not to afford the accused compulsory process, a due process, rather than a compulsory process analysis, shall be used. In other words, the trial court would evaluate the defense request to compel the production of evidence by determining whether or not due process of law requires its production. The information that is presented at a criminal trial is termed evidence. At trial, each side may present evidence to convince the fact-finder (the judge or jury) of the truth or falsity of any given fact. Evidence can take many forms. For example, the California Evidence Code Section 140 defines evidence as testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. In general, evidence may take the form of pictures, reports, scientific analyses, lab results, photographs, actual objects, as well as live testimony, that is, testimony from witnesses. Testimonial evidence is obtained through direct examination by the prosecutor, as well as through cross-examination by counsel for the accused, by way of a question-and-answer format. Both the prosecutor and the accuseds counsel attempt to elicit specific information in an orderly way. However, not all evidence will be presented to the fact-finder. Remember, it is the proponent of the evidence who first must convince the judge that the evidence is relevant. In fact, both state and federal courts have strict rules for determining what evidence is admissible at a trial.
Judge Determines What is Relevant Evidence
As we have stated, only evidence that is relevant will be admissible at a trial. It is the trial judge that determines what evidence is, in fact, relevant. Relevant evidence is defined by the California Code of Evidence at Section 210 as evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The Federal Rules of Evidence define relevance more globally at Rule 401: Evidence as having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Relevance is not the sole criterion for evidence to be admissible. Evidence must also be necessary to assist the jury in understanding the issues, and must not be confusing, misleading or cumulative. Further, the proffered evidence must also be evaluated to determine whether or not it is hearsay. Hearsay in its most basic form is defined as an out-of-court statement offered to prove the truth of the matters asserted in that statement. If a hearsay objection is raised to the offer of a certain piece of evidence, the court must decide whether or not that evidence is admissible hearsay, specifically, does it fall within any of the enumerated exceptions to the hearsay rules. Generally, the analysis centers on the reliability and trustworthiness of the statement.
Subpoenas Issued by Judge
Consequently, when a judge decides whether to issue subpoenas in line with the accuseds right to compulsory process, the judge must first decide whether or not that evidence is relevant and admissible. Thus, as we have said, although the accused is constitutionally guaranteed the right to compulsory process, that right is limited, and the court will use a due process analysis to determine whether or not process will issue. Compulsory process may take the form of a general subpoena for appearance at a trial for purposes of giving testimony. It also may take the form of a subpoena duces tecum, which is a subpoena to bring documents to the court. The right to subpoena witnesses or documents also includes the right to obtain a bench warrant, or a continuance, if the witness fails to appear, or a contempt order or other sanctions if the subpoena is not otherwise followed.
Nevertheless, before any subpoena is issued, the court will generally require that the accused defendant show a need for a subpoena. That need is generally presented in a declaration submitted by counsel, which discusses why the testimony or other evidence is favorable and material to the defense, and cannot be obtained by any other reasonable means. The court will then make its decision. Although, as we have stated, the right to compulsory process is not absolute, the court cannot impair the right by taking action that would make the witness unavailable, or by excusing subpoenaed witnesses from testifying, or by arbitrarily limiting the number of subpoenas that will be issued.
Failure to Comply with Subpoena
Since a subpoena is a court order, failure to comply may result in the application for and issuance of sanctions. For example, if a witness fails to obey a subpoena, the defendant is entitled to the issuance of a writ of attachment, which is an order that directs any law enforcement officer to bring the witness before the judge. This writ is more commonly referred to as a bench warrant. However, while a court can issue a bench warrant on behalf of a defendant, the prosecutor is not obligated to actually bring the witness to court. The prosecutors sole duty is to provide the defendant with every opportunity to locate and serve the witness with the subpoena. The defendant’s right to compulsory process is satisfied when the prosecutor turns over the witness contact information to the defense even when a witness cannot be located.
Justice System Designed to Ensure Rights of Accused
The American criminal justice system is specifically designed to ensure that the rights of every citizen who is accused or charged with a crime are maintained throughout the proceedings. The Constitution provides each and every citizen is guaranteed due process, and a fair trial. The commitment of a free society is to support and protect these fundamental rights. Therefore, the right to compulsory process is vital to the accuseds right to a fair trial, which embodies the right to present a defense.
If you or someone you know is the subject of a criminal investigation or prosecution, it is important that an experienced criminal defense attorney be consulted so that proper counsel is obtained and your constitutional rights can be safeguarded.
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