Reconceiving the Right to Present Witnesses

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, but relatively neglected, area that lies at the intersection of evidence, the Constitution, and crime. For more than three decades, the Supreme Court has recognized a constitutional right on the part of criminal defendants to present witnesses. Although this right is not set forth explicitly in the text of the Constitution itself, the Court correctly has regarded it as a necessary implication of the Compulsory Process Clause of the Sixth Amendment. As such, the right is an integral part of the constitutional guarantees that a criminal defendant may invoke to override the ordinary rules of evidence, whether in the form of statutes or common law decisions – in essence, to tum a dispute within the law of evidence into a constitutional case.