CONFRONTATION AND COMPULSORY PROCESS - A UNIFIED THEORY OF EVIDENCE FOR CRIMINAL CASES

• NCJ Number: 45194
• Journal: Harvard Law Review Volume: 91 Issue: 3 Dated: (JANUARY 1978) Pages: 567-628
• Author(s): P WESTEN
• Date Published: 1978
• Length: 62 pages
• Corporate Author: Harvard Law Review Assoc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

AN INTEGRATED VIEW OF THE EFFECT OF THE CONFRONTATION AND COMPULSORY PROCESS CLAUSES OF THE SIXTH AMENDMENT ON THE CONDUCT OF CRIMINAL TRIALS IS PRESENTED.

Abstract

THE CONSTITUTION GUARANTEES THE ACCUSED THE RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM AND TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESS IN HIS FAVOR. ALTHOUGH IT IS WIDELY ASSUMED THAT THE CONSTITUTION THUS PROTECTS AGAINST SUMMARY PROSECUTION AND PUNISHMENT, LAWYERS FIND IT DIFFICULT TO ANSWER CERTAIN BASIC QUESTIONS: WHAT IS THE DIFFERENCE BETWEEN WITNESSES AGAINST THE ACCUSED AND WITNESSES IN FAVOR OF THE ACCUSED? WHAT IS THE DIFFERENCE BETWEEN A DEFENDANT'S RIGHT TO BE CONFRONTED WITH WITNESSES AND HIS RIGHT TO PROCESS FOR OBTAINING WITNESSES? DOES THE RIGHT OF CONFRONTATION INCLUDE THE RIGHT TO DAMAND THAT THE STATE PRODUCE WITNESSES WHO ARE NO LONGER AVAILABLE? DOES THE RIGHT OF COMPULSORY PROCESS INCLUDE THE RIGHT, ONCE A WITNESS HAS BEEN PRODUCED, TO EXAMINE THE WITNESS AND INTRODUCE TESTIMONY INTO EVIDENCE. MAJOR SUPREME COURT DECISIONS ARE CITED IN THE DEVELOPMENT OF A THEORY THAT POINTS TO SIMILARITIES AND KEY DIFFERENCES WITH REGARD TO THE RIGHTS OF CONFRONTATION AND COMPULSORY PROCESS. IT IS PROPOSED THAT THE TWO PROVISIONS ARE AT THE SAME TIME SUBSTANTIALLY IDENTICAL AND THE CONVERSE OF ONE ANOTHER. BOTH ENTITLE A DEFENDANT TO PRESENT A DEFENSE BY GUARANTEEING HIM THE RIGHT TO PRODUCE AND PRESENT EVIDENCE THROUGH WITNESSES AT TRIAL. YET THERE IS THE DISTINCTION THAT THE CONFRONTATION PROVISION GUARANTEES THE ACCUSED THE RIGHT TO PRODUCE AND ELICIT EVIDENCE FROM WITNESSES IN HIS FAVOR. THE DISTINCTION IS IMPORTANT BECAUSE, ALTHOUGH THE MEASURE OF A DEFENDANT'S RIGHT TO PRODUCE AND ELICIT TESTIMONY FROM WITNESSES IS THE SAME IN EACH CASE, THE BURDEN OF INITIATING THE PRODUCTION OF WITNESSES TURNS ON WHETHER THE WITNESS IS CHARACTERIZED AS AGAINST OR IN FAVOR OF THE ACCUSED. (AUTHOR ABSTRACT MODIFIED - LKM)