Right to Present Witnesses

Right to Present Witnesses

The rules covered so far (issuing, serving, and enforcing a subpoena) all aim at one result, which is getting a favorable witness physically into the courtroom. Presence is only a means to that result, because the defense wants the witness there so the jury will hear what the witness knows. A reading of the Compulsory Process Clause that stopped at attendance would therefore leave a gap: a State could issue every subpoena the defendant requests and then forbid the witness to speak. Washington v. Texas presented that gap when two Texas statutes barred persons charged or convicted as coparticipants in the same crime from testifying for one another, although nothing kept them from testifying for the State, and the trial judge relied on those statutes to refuse to let a coparticipant already convicted of the same murder testify for the defendant.¹ The State did not resist compelling the witness's attendance. A statute made his testimony inadmissible whether he sat in the courtroom or not, so the Court had to decide whether the Sixth Amendment guarantees the right to put witnesses on the stand as well as the right to compel their attendance.²

The Court answered that it does. 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, which means the right to give the jury the defendant's version of the facts alongside the prosecution's so that the jury can decide where the truth lies.³ The Court drew a parallel with confrontation: an accused may cross-examine the prosecution's witnesses to challenge their testimony, and by the same token may present witnesses of his own to establish a defense.⁴ The history of the clause, taken up earlier, shows why the right cannot end at the courthouse door. The clause entered the Bill of Rights in reaction to the common-law rule that in treason and felony cases the accused could not introduce witnesses at all, so a rule that lets a defense witness appear and then keeps the witness from speaking revives the old harm in a different form.⁵ Faretta v. California made a related structural point when it read the notice, confrontation, and compulsory process clauses together as guaranteeing that a charge can be answered by calling and interrogating favorable witnesses, cross-examining adverse witnesses, and introducing evidence in an orderly way.⁶

The word that carries the doctrine from here on is arbitrary. Washington reasoned that the Constitution is no less violated by arbitrary rules that keep whole categories of defense witnesses off the stand on a priori presumptions that they are unworthy of belief, and it added that an accomplice bar could not even be defended as a rational way to single out people especially likely to commit perjury.⁷ The Court's conclusion, as later described in Rock v. Arkansas, was that the State had arbitrarily denied the defendant the right to put on the stand a witness who was physically and mentally capable of testifying to events he had personally observed, and whose testimony was relevant and material to the defense.⁸ Two features made the Texas rule arbitrary in that sense. It operated by category, so it never asked whether this particular witness was believable, and its supposed reliability concern disappeared whenever the witness would help the prosecution. A rule whose worry about credibility vanishes when the witness favors the State is not tracking credibility at all, and the usual response to suspected unreliability is to let the jury hear the witness and weigh the testimony.

The reasoning did not stay inside rules of competence. A State that lets a witness take the stand but arbitrarily excludes material portions of the testimony violates the same right, and Rock explained that Chambers v. Mississippi rested on that idea when it invalidated a hearsay rule as applied because the rule abridged the defendant's right to present witnesses in his own defense.⁹ Crane v. Kentucky then stated the principle generally: whether the source is the Due Process Clause or the Compulsory Process or Confrontation Clauses, the Constitution guarantees a meaningful opportunity to present a complete defense, and that opportunity would be empty if the State excluded competent, reliable evidence central to the defendant's claim of innocence without any valid justification.¹⁰ The Court has repeated that formulation, locating the right in the Compulsory Process and Due Process Clauses, in Holmes v. South Carolina.¹¹ A dissent in United States v. Scheffer, collecting the Court's earlier statements, observes that few rights are more fundamental than the accused's right to present witnesses in his own defense.¹²

None of this makes the right unlimited. Even in Crane the Court acknowledged that trial judges keep wide latitude to exclude evidence that is repetitive, only marginally relevant, or likely to cause harassment, prejudice, or confusion, and that States may apply evidence rules serving fairness and reliability even when the defendant would prefer the evidence admitted.¹³ The clause therefore draws its line between rules and rulings that arbitrarily shut out material defense testimony and the ordinary management of a trial.

Both rulings keep something from the jury, yet they stand on different footing. The categorical bar has the features that doomed the Texas statutes: it works by category, rests on a presumption of unreliability, and asks nothing about the particular witness. The cumulativeness ruling is the kind of ordinary judgment about marginal evidence that trial judges retain. On an exam stem, a witness who appears and is nonetheless silenced still presents a compulsory process problem, so a properly issued, served, and obeyed subpoena does not end the analysis. The Court has since turned the word arbitrary into a working standard asking whether a rule is arbitrary or disproportionate to the purposes it serves, and a later section develops that test.¹⁴ The sections that follow first take up competence bars like the one in Washington, then evidence rules that block testimony, and then the defendant's own right to testify.

Competence Bars on Defense Witnesses

The principle that the clause reaches testimony as well as attendance becomes concrete in the facts of Washington v. Texas, which this section follows in the order the events occurred.¹⁷ Jackie Washington, an 18-year-old, was convicted in Dallas County, Texas, of murder with malice and sentenced by a jury to 50 years in prison. The prosecution's evidence showed that, motivated by jealousy over a girl who had begun dating another boy, Washington and several others drove around Dallas one night looking for a gun, and the search ended with Charles Fuller, who joined the group with his shotgun. At the girl's home some of the boys threw bricks at the house and ran back to the car, leaving Washington and Fuller alone in front of it with the shotgun. When the deceased and the girl's mother rushed out onto the porch, the gun was fired by either Washington or Fuller, and the deceased was fatally wounded.¹⁸

Washington testified in his own defense that Fuller, who was intoxicated, had taken the gun from him, that Washington had tried without success to persuade Fuller to leave, and that he had run back to the car before the shot.¹⁹ To support that account he offered Fuller as a witness, and the record indicates that Fuller would have testified that Washington pulled at him and urged him to leave, and that Washington ran before Fuller fired. It was undisputed that this testimony would have been relevant, material, and vital, because Fuller was the only person other than Washington who knew exactly who had fired the shotgun and whether Washington had tried at the last minute to prevent the shooting. Fuller had already been convicted of the same murder, sentenced to 50 years, and confined in the Dallas County jail. Two Texas statutes then provided that persons charged or convicted as coparticipants in the same crime (people accused of taking part in one offense as principals, accomplices, or accessories) could not testify for one another, although nothing barred them from testifying for the State.²⁰ On the strength of those statutes the trial judge sustained the State's objection and refused to let Fuller testify, the Texas Court of Criminal Appeals upheld the conviction, and the Supreme Court reversed.²¹

The statutes had an old pedigree and a stated reason. As the Court later described them in Rock v. Arkansas, they rested on the same concern for the reliability of interested witnesses that produced the common-law bar on a defendant's own testimony: if two people charged with the same crime could testify for each other, each would try to swear the other out of the charge.²² Underneath that concern sat two unstated premises, that the right to present witnesses ranks below the court's interest in preventing perjury, and that error is best avoided by keeping from the jury any testimony that might be perjured, even when it is the only testimony available on a crucial issue.²³ Washington rejected both premises. It relied on the view, stated by the Court in 1918, that the truth is more likely to emerge when the factfinder hears every person of competent understanding who may know the facts and then weighs the credit each deserves, and it concluded that the Sixth Amendment was designed in part to make the testimony of a defendant's witnesses admissible on his behalf.²⁴ The practical core of that shift is easy to see. A blanket rule settles credibility before the witness speaks and settles it identically in every case, while a jury that hears the witness can watch demeanor, listen to cross-examination, and weigh the witness's stake in the outcome. The dissent in United States v. Scheffer places Washington on a long retreat from category-based exclusion: the common law once treated defendants, their spouses, and their co-conspirators as incompetent, and over time strict exclusion gave way to rules that leave admission to the trial judge and weight to the jury.²⁵

Because Texas rather than the United States was the prosecutor, the Court first had to decide whether the Sixth Amendment guarantee binds the States, and it held that the right to compulsory process stands on no lesser footing than the other Sixth Amendment rights already applied to the States through the Fourteenth Amendment.²⁶ On the merits, the Court found that the mere presence of the witness in the courtroom did not satisfy the clause, and it held that the State had arbitrarily denied Washington the right to put on the stand a witness who was physically and mentally capable of testifying to events he had personally observed and whose testimony would have been relevant and material to the defense.²⁷ The categorical, one-way features that make such a bar arbitrary were developed at the opening of this part. What the facts add is the effect on the contest itself. Only the State could call a coparticipant, so the jury would hear an accomplice's account whenever it pointed at the defendant and never when it pointed away. Compulsory process exists to put the defendant's version of the facts before the jury beside the prosecution's, and a rule that equips one side with the best-informed witnesses while disarming the other defeats that function at its source.²⁸

The case also explains why the subpoena mechanics covered earlier could not have helped Washington. A subpoena brings a witness to court, but a court asked to enforce or issue one must look beyond local law on competence and privilege, because the Constitution can override a state rule and declare admissible, and subject to subpoena, testimony that state law would otherwise exclude.²⁹ Fuller's testimony fell into that category. Attendance would have delivered the witness, and the Constitution had to supply the right to hear him.

Two linked facts move the answer: whether the witness is capable, and whether the exclusion rests on something about the witness or on a category. The first neighbor fails the capacity element, since the protection reaches witnesses who are physically and mentally capable of testifying, and the judge excluded after an individualized inquiry into this neighbor.³⁵ The second neighbor matches Fuller: capable, an eyewitness, material, and excluded by a status rule that operates one way, so the denial is arbitrary. Students most often lose this issue by defending the second exclusion on the ground of perjury risk, when the Court rejected the idea that the possibility of untruthful testimony justifies keeping a whole category of defense witnesses from the jury.³⁶ None of this gives the defense a right to call every witness it names. Later sections take up evidence rules that block testimony and the arbitrary-or-disproportionate test that marks where legitimate limits begin.

Evidence Rules That Block Testimony

The logic of Washington does not depend on the label a State puts on its rule. A competence statute keeps a witness off the stand altogether, but an ordinary evidence rule can leave the witness in the chair and still silence the part of the testimony that matters. Rock v. Arkansas draws the parallel: just as a State may not apply an arbitrary rule of competence to exclude a material defense witness, it may not apply a rule of evidence that permits the witness to testify but arbitrarily excludes material portions of the testimony.³⁸ From the defendant's side the injury is the same, because a witness who may speak but may not say anything useful has not really been put on the stand in the defendant's favor. One difference does matter. The Texas statutes rested on a presumption about whole categories of witnesses, while evidence rules usually rest on a genuine purpose; the hearsay rule, for instance, keeps out out-of-court statements that the jury cannot test by questioning the speaker. The constitutional question is therefore whether applying the rule in this case still serves that purpose.

The leading illustration is Chambers v. Mississippi, which Rock describes this way. Chambers was tried for a murder to which another person had repeatedly confessed in the presence of acquaintances, and the State's hearsay rule, coupled with a voucher rule that did not allow the defendant to cross-examine the confessed murderer directly, kept out testimony about those confessions, which were critical to his defense.³⁹ The voucher rule limited a party's ability to cross-examine its own witness, and the hearsay rule refused to admit statements against the speaker's penal interest. It was the two limits operating in combination that stopped the jury from hearing the confessions.⁴⁰ The Court reversed the conviction, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may "not be applied mechanistically to defeat the ends of justice" and must meet the fundamental standards of due process.⁴¹ The application failed because of the evidence itself: the State had not shown that the hearsay testimony, which bore "assurances of trustworthiness" including corroboration by other evidence, would be unreliable, so the defendant should have been allowed to introduce it.⁴²

Corroboration is the variable that carries the case, and the reason follows from what a hearsay rule is for. The rule exists because nothing guarantees that an out-of-court statement is true, and the jury cannot test it by watching the speaker answer questions. When other evidence independently supports the statement, that worry has been answered. The rule's only remaining effect is to keep from the jury evidence that is critical to the defense, so applying it protects no interest of the State and costs the defendant his ability to present his own witnesses. The reverse also holds. When a statement carries no such markers of reliability, the rule is doing exactly what it was built to do, and the defendant's interest does not displace it. That is why Chambers has been read narrowly, as requiring the admission of defense evidence only when the evidence is extremely trustworthy.⁴³

The jail record leaves the first set of admissions with no assurances of trustworthiness, so excluding them applies the hearsay rule for the very reason the rule exists, and no compulsory process right to present them arises. The second set carries the kind of corroboration that mattered in Chambers, and applying the rule mechanistically there would keep reliable, critical evidence from the jury.⁴⁴ The two versions differ in a single fact, and that fact decides whether the rule is serving its purpose or merely being applied.

A second decision, Crane v. Kentucky, shows a different variable at work. The petitioner's entire defense was that no physical evidence linked him to the crime and that his earlier admission of guilt should not be believed, and to support it he sought to show the jury that he was a young, uneducated boy held against his will in a small, windowless room for a long time until he confessed to every unsolved crime in the county.⁴⁵ The Kentucky courts foreclosed that testimony, and the Supreme Court reversed, because evidence about how a confession was obtained is often highly relevant to its reliability and credibility, the evidence was all but indispensable to the defense, and no rational justification had been advanced for excluding it wholesale.⁴⁶ The two cases ask different questions. In Chambers the State had a genuine reliability rule, and the issue was whether the evidence's own trustworthiness meant the rule's purpose was unserved. In Crane the State offered no purpose at all for a blanket exclusion of competent, reliable evidence central to the claim of innocence, so there was nothing to weigh. Crane also describes the guarantee as one that may be rooted in the Due Process Clause or in the Compulsory Process and Confrontation Clauses, which is why an answer on this topic can invoke the clauses together.⁴⁷

Neither decision makes every evidentiary ruling reviewable. The Constitution leaves trial judges wide latitude to exclude evidence that is repetitive, only marginally relevant, or likely to cause harassment, prejudice, or confusion, and States may apply rules that serve fairness and reliability even when the defendant would prefer the evidence admitted.⁴⁸ The right to present a defense likewise does not override every evidence rule. In United States v. Scheffer a challenge to a rule excluding polygraph evidence failed, because the entitlement is abridged only by rules that infringe "a weighty interest of the accused" and are "arbitrary" or "disproportionate" to the purposes they serve.⁴⁹ A later section develops that standard in full.

Students lose this issue by treating every hearsay ruling that hurts the defense as a constitutional violation, when the reasoning in Chambers depended on assurances of trustworthiness that answered the reliability worry behind the rule.⁵⁵ Step three is therefore where the analysis is usually won or lost.

The Defendant as Witness

The witnesses discussed so far are people other than the accused, yet in many criminal cases the most important witness for the defense is the defendant. At common law the accused could not be sworn as a witness, and the old disqualification rested on a concern about the defendant's veracity.⁵⁷ Legislation removed that bar: by the end of the second half of the nineteenth century every State except Georgia had declared criminal defendants competent to testify, and Congress enacted a general competency statute in 1878.⁵⁸ The constitutional question that remains is whether a State may restrict what a willing defendant says from the stand, and one answer begins in the Sixth Amendment's compulsory process guarantee.

In Rock v. Arkansas the Court found the accused's right to testify in several provisions: the Due Process Clause, which secures a right to be heard and to offer testimony, the Fifth Amendment guarantee against compelled self-incrimination, whose necessary corollary is that the choice to testify belongs to the accused, and the Compulsory Process Clause.⁵⁹ The compulsory process route runs through the text. The Sixth Amendment gives the accused the right to call witnesses in his favor, which reaches witnesses whose testimony is "material and favorable to his defense," and so the right to call such witnesses logically includes the right to testify himself, should he decide it is in his favor to do so.⁶⁰

Each link in that inference carries weight. A defendant who may subpoena every eyewitness but may not describe the events personally holds a right to call witnesses that leaves out the person best placed to answer the prosecution's case. The Sixth Amendment also grants the accused personally, and not counsel alone, the right to make a defense, so a defendant's opportunity to conduct that defense by calling witnesses is incomplete if the defendant may not present himself as a witness.⁶¹ The old worry about the defendant's truthfulness does not justify keeping the accused off the stand, because like any other witness the defendant can be tested by cross-examination.⁶² That is the same answer the Court gave in Washington to the perjury rationale for barring coparticipants, which explains why a blanket presumption of unreliability cannot carry the weight the common-law rule once placed on it.⁶³

The right is not unlimited. A State has a legitimate interest in keeping unreliable evidence from the jury, and that interest justifies requiring the defendant to conform testimony to the ordinary rules of evidence.⁶⁴ Restrictions may not, however, be arbitrary or disproportionate to the purposes they are designed to serve, so a State applying its evidentiary rules must ask whether the interests the rule serves justify the limit it places on the defendant's testimony.⁶⁵

The Arkansas rule failed that test. The state courts treated a defendant's posthypnosis testimony as always unreliable and therefore inadmissible, and the rule gave a trial court no room to consider whether the testimony might be admissible in the particular case.⁶⁶ It operated against any defendant who had undergone hypnosis, whatever the reasons for it, the circumstances under which it took place, or any independent verification of what it produced. The effect on the petitioner was concrete. The rule virtually prevented her from describing any of the events of the day of the shooting, even though other witnesses corroborated many of them, and she could describe the shooting itself only in the words contained in Doctor Back's notes. The expert's description of the gun's tendency to misfire would have carried more weight had the jury heard her say that she did not have her finger on the trigger and that the gun went off when her husband hit her arm.⁶⁷

Because the rule excluded all such testimony without regard to the likelihood that the testimony in the particular case was unreliable, the Court held that it violated the defendant's constitutional right.⁶⁸ The defect lay in the rule's per se character. The State's reliability concern was real, but a blanket ban ignored the procedural safeguards used in the hypnosis process, the availability of corroborating evidence, and the other traditional means of assessing the accuracy of the testimony.⁶⁹ A rule that treats a possible risk as a certainty, and so sweeps in testimony the State has no reason to distrust, is excessive in relation to its own purpose.

State A's rule has the Arkansas defect, since it forecloses any look at the particular case. State B presents a different question. The Court's objection ran to the per se character of the Arkansas rule, so whether a case-specific exclusion would survive is not settled by that holding, although State B's hearing matches what the Court said a State must do, which is to evaluate whether the interests served by the rule justify the limitation as applied.⁷⁰

Students lose this issue by reading the decision as a ban on every limit on the accused's testimony, when the Court's objection ran to the per se character of the exclusion.⁷¹ The analysis is best run as a short sequence of questions drawn from the Court's reasoning.