Source of the Right

Source of the Right

The Introduction put the clause's words on the page. This section asks where the right comes from, and the answer has three parts: the scope the text fixes, the common-law practice the Framers meant to end, and the route by which the guarantee reaches state courts. Each part carries forward into later sections, because the reason the clause was written is the same reason courts use when they decide whether a state evidence rule or a subpoena practice has gone too far.

Text and Scope

The Sixth Amendment gives its list of trial rights to "the accused" and applies them "in all criminal prosecutions."¹ Those words fix who may invoke compulsory process. The holder is a person the government has charged with a crime, and the witnesses the clause reaches are those "in his favor," so the clause is a tool for the defense and gives no general power to summon testimony for any litigant.² In Counselman v. Hitchcock the Court read the Sixth Amendment's reference to a criminal prosecution as describing a proceeding against an accused person who is to be tried by a petit jury, and it treated that phrase as much narrower than the Fifth Amendment's reference to a criminal case.³ In practical terms, the clause gives a criminal defendant the subpoena power for obtaining witnesses favorable to the defense.⁴

A witness who refuses to appear invites a reflex to reach for the Sixth Amendment, and the reflex fails whenever the proceeding is civil, because only an accused in a criminal prosecution holds the right. The text confines the guarantee in this way, and the contractor's situation shows it: the need for the witness is identical in both versions of the case, and only the criminal charge changes the answer.

The Common-Law Reason

At common law, an accused charged with treason or felony could not introduce witnesses in his own defense at all, and Joseph Story traced the compulsory process guarantee to the Bill of Rights as a reaction to that rule, an account the Court relied on in Washington v. Texas.⁶ The harm is easy to trace. A jury that hears only the prosecution's witnesses has a single account of events and nothing to measure it against, so the verdict follows the government's story unless the accused can point to a gap in it. A concurring opinion by Justice Harlan in California v. Green describes that condition: before the late seventeenth century the accused's only defense was to argue that the prosecution had not completely proved its case.⁷

Removing the old bar did not make the guarantee redundant. The absolute prohibition on defense witnesses had been abolished in England by statute before 1787, yet the Framers still thought it necessary to provide that defendants be given the means of obtaining witnesses, so that their evidence as well as the prosecution's could be evaluated by the jury.⁸ The reason is practical, since permission to call a witness is worth little to an accused who has no way to make a reluctant witness come. Powell v. Alabama, quoting Holden v. Hardy, observed that the common-law practice had not been changed in England so far as it denied the accused compulsory process for the attendance of his witnesses, and that the American colonies had never allowed so oppressive a doctrine a foothold.⁹

The guarantee is framed as a right to process because compulsion over witnesses is a power of government. The power to compel testimony is long established, and the first Congress provided for compulsory attendance of witnesses in the federal courts in the Judiciary Act of 1789.¹⁰ Because the prosecution wields that power as a matter of course, a private accused has nothing comparable unless the government extends it, and the clause requires the government to extend it. Justice Harlan read the brief congressional debate on the clause as showing that the right was understood to promise governmental process, qualified by whether the witness could in fact be reached.¹¹ The next section develops that point.

The modern consequence is parity between the two sides of the trial. Washington v. Texas described the right as the right to present the defendant's version of the facts as well as the prosecution's, so that the jury can decide where the truth lies, and it compared the accused's power to call his own witnesses with his power to confront the prosecution's.¹² The rights to notice, confrontation, and compulsory process, taken together, constitutionalize the right to make a defense as we know it in an adversary trial.¹³ The defense's entitlement to put on its case therefore ranks alongside the government's, and that ranking is why courts treat restrictions on defense witnesses as constitutional questions rather than routine evidentiary rulings.

Incorporation Against the States

The Sixth Amendment binds federal prosecutions by its own force, so the next question is whether state courts must honor it, which depends on whether the Fourteenth Amendment's Due Process Clause carries the guarantee to the states. Washington v. Texas supplied the answer. A Texas court convicted Jackie Washington of murder after a state statute kept a witness who was vital to the defense off the stand.¹⁵ The Supreme Court had never decided whether compulsory process is so fundamental to a fair trial that due process incorporates it, and it held that the right stands on no lesser footing than the counsel, confrontation, speedy-trial, and public-trial rights already applied to the states.¹⁶

The Court's reason was that the right to offer witnesses and to compel their attendance is "in plain terms the right to present a defense" and "a fundamental element of due process of law."¹⁷ Later decisions describe selective incorporation as asking whether a Bill of Rights guarantee is fundamental to the scheme of ordered liberty, and they list compulsory process among the Sixth Amendment rights now protected against state action.¹⁸ Incorporation also fixes the standard: an incorporated guarantee is enforced against the states under the same standards that apply against federal encroachment, so a state cannot apply a diluted version of the clause.¹⁹ A state murder prosecution therefore falls inside the clause, as in Washington, while the civil damages action in the contractor example falls outside it whichever court hears the case.

With the source of the right settled, the clause's most obvious content is the power to compel a witness to come to court. The next section turns to that power in practice, beginning with the procedure Rule 17 supplies for federal trials.