Introduction

Compulsory Process and Subpoenas

Introduction

A defendant whose whole case rests on a witness who will not come to court voluntarily has a problem that the ordinary give-and-take of a trial cannot solve. The prosecution can summon its own witnesses with the authority of the state behind it, but a private accused has no comparable means of making a reluctant friend, bystander, or acquaintance appear, and a defense without its witness may be no defense at all. The Sixth Amendment addresses that imbalance in one clause among its list of trial rights, providing that in all criminal prosecutions the accused shall enjoy the right "to have compulsory process for obtaining witnesses in his favor."¹ The same Amendment also guarantees a speedy and public trial, an impartial jury, notice of the accusation, confrontation of adverse witnesses, and the assistance of counsel; those guarantees are taught elsewhere, and this chapter isolates the witness clause.²

In plain terms, the clause gives a criminal defendant the subpoena power to obtain witnesses favorable to the defense.³ This chapter uses it in two linked ways. The first is as a constitutional guarantee: the government may not keep an accused from securing and presenting favorable witnesses. That guarantee has a procedural side, which is the right to the government's help in getting a witness to court, and a substantive side, which is the right to have the witness actually heard once there, because bringing a witness to the courthouse accomplishes little if the state then prevents the testimony. The second use is as concrete procedure. The usual tool for exercising the right is a trial subpoena under Fed. R. Crim. P. 17, and a subpoena has a life cycle of its own: it must be issued, served, and enforced, and it may sometimes be quashed or modified when it reaches too far.

Those two uses correspond to two questions this chapter will help you answer. The first is whether a particular defendant was denied compulsory process, which is a constitutional question answered by asking what the government did to keep a favorable witness away or silent. The second is whether a particular trial subpoena should issue, be quashed, or be modified, which is a procedural question answered from the text of the rule and the circumstances of the request. Because the rules of procedure exist to carry out the constitutional right, the right comes first and the rules follow. The next section therefore begins with the source of the right, tracing where it comes from and why it was written into the Amendment.