The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Witness and Counsel in Criminal Trials

The Right to Compel Witnesses

Colonial Courts

The ancient practice of denying the privilege of calling witnesses for the defense of the accused was likewise denounced in America. Joseph Story, writing his Commentaries on the Constitution in 1833, marveled that England had ever denied this right in capital cases, noting that the right to obtain witnesses “seems never to have been doubted, or denied, in cases of mere misdemeanors.” That it was ever denied in capital offenses must have been a historical aberration, and Story attributes the abuse to an undue influence and corruption by the Crown. He concludes that the ancient practice was “a reproach to the criminal jurisprudence of England”; and, as a consequence, “they are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence.”

Nonetheless, the same abuses could be found in many American colonial courts during the same period. But some colonies reversed course at roughly the same time that England did. By 1701, Delaware’s Charter already guaranteed “[t]hat all Criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.” And by the time that the states were writing their first constitutions, this right was widely recognized and protected. The 1776 Virginia Declaration of Rights ensured that “in all capital or criminal prosecutions a man hath a right…to call for evidence in his favor.” Vermont’s Constitution of 1777 used very similar language to Virginia’s. Delaware’s Declaration of Rights went further than merely recognizing the right “to call for evidence in his favor”; it guaranteed that the accused had a right “to examine Evidence on Oath in his Favour.”

Debates During Ratification

During the ratifying period, both Virginia and North Carolina had requested that the United States Constitution be amended to ensure that the accused had the right “to call for evidence.” New York had wanted even stronger language, specifying that the accused “ought…to have the means of producing his Witnesses.” Madison’s proposal to the First Congress borrowed more from Blackstone than from the state ratifying conventions, and therefore it contained language that was even more robust. It guaranteed to the accused the right “to have a compulsory process for obtaining witnesses in his favor.”