When Constitutional Worlds Colide: Resurrecting the Framers’ Bill of Rights and Criminal Procedure

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr’s motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment – which guarantees only the right to compel the attendance of witnesses – to hold that Burr was entitled to compel production of the letter. The distinction between compelling witnesses to attend and compelling witnesses to bring papers with them, Marshall wrote, “is too much attenuated to be countenanced in the tribunals of a just and humane nation.” Marshall’s view is widely regarded as a “sweeping construction to the compulsory process clause.” Fast forward just over 180 years and imagine Justice John Paul Stevens sitting at his desk pondering the interpretation of the right to compulsory process in Taylor v. Illinois. Taylor subpoenaed two witnesses who would testify to his innocence of the charge of attempted murder, but his lawyer failed to include their names on the list of defense witnesses that Illinois law required him to turn over to the prosecutor. From a list of sanctions for the lawyer’s failure, the state trial judge chose the most draconian – he forbade the witnesses from testifying. The Court held in an opinion by Stevens that the right to compulsory process, as applied to the States through the Fourteenth Amendment, did not forbid the judge from barrillg the testimony of witnesses that might have moved the jury to vote not guilty.