Terms:

Process:
The means by which a court may acquire jurisdiction over an individual, or the means by which a court exercises such jurisdiction in order to compel an individual to appear or otherwise abide by the courts commands.

Subpoena:
A court command to an individual to present himself at a given location at a specific time in order to testify in connection with a stated matter.

Bench Warrant:
When a witness refuses or otherwise fails to appear following the issuance of a subpoena, a court may issue a bench warrant, calling for the arrest of that individual.

Discovery:
A series of pre-trial processes and devices whereby each party obtains facts and information from the other party. In criminal cases, crucial in the process is the defendant’s right to gain access to all material evidence required for the defendant to prepare his case.

The Sixth Amendment guarantees the right of the accused “to have compulsory process for obtaining witnesses in his favor.” The prosecutor has the power to compel witnesses to attend by using the police system at the government's disposal. Thus, the Sixth Amendment levels the playing field by allowing this same ability to the Defendant. See Washington v. Texas, 388 U.S. 14 (1967).

Compulsory process may be obtained by issuing a subpoena. However, if necessary, an arrest warrant may be issued to compel a witness to appear before a court in order to provide material testimony.

EXAMPLE: Frank and Connie divorced recently under less than amicable conditions (Connie caught Frank cheating on her). On the night of September 7, 2003, Frank was at Connie’s house packing up some of his belongings. Connie kept close watch over him to make sure he didn’t take any of her Warren Zevon albums. Weeks later, Frank is arrested for a crime committed on the evening in question. Frank’s attorney asks Connie to make herself available as a witness because she can testify that Frank was with her at the time that the crime was committed. Connie refuses because, despite her efforts to monitor Frank, he managed to steal her signed copy of “Bad Luck Streak in Dancing School,” and she is really mad at him. When Connie receives the subpoena, she rips it up. On her appearance date she does not show up. Frank’s attorney can request that the court issue a bench warrant to secure Connie’s appearance to testify as to Frank’s whereabouts on the night in question.

The right to compulsory process can also be violated because of a judge’s behavior. If a judge is not even-handed in his warnings against perjury to prosecution and defense witnesses, or, by his behavior, causes a defense witness to fail to testify by intimidating the witness, the Sixth Amendment right to present a witness may have been violated. See Webb v. Texas, 409 U.S. 95 (1972). Also, Sixth Amendment concerns may be raised if the government deports a witness and the defense can show that the witness’ testimony would have been favorable and material (important) at trial. See United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).

EXAMPLE: Judge Hank M. Hye is the presiding judge for Roland’s murder trial. When Roland’s brother takes the stand, Judge Hye gives him the following warning: “You should understand that committing perjury is a serious offense, a crime, and I will not hesitate to throw the book at anyone who lies while on the stand in my court. If you even come close to saying something that could be construed as less than honest I will personally make sure that Prosecutor Peters immediately files a charge of perjury against you and pursues your conviction with all possible zeal.” All other witnesses had simply been told “Perjury is an offense which we take seriously around here, so think before you speak.” If Roland’s brother now refuses to testify because of the judge’s remarks, Roland has been deprived of his right to present all favorable witnesses.

It is possible, however, to exclude a defendant’s favorable witness without running afoul of the Sixth Amendment. If a witness is known to the defense but not properly identified during pretrial discovery, that witness’ testimony may be excluded as a sanction for violating the rules of discovery. See Taylor v. Illinois, 484 U.S. 400 (1988). Despite the frequency with which such events occur on television and in the movies, there is effectively no such thing as a “surprise witness.” At no point in an actual courtroom will a hush and then a murmur fall upon the court as a long-lost witness, whose existence was known only to the defendant’s attorney, suddenly walks through the doors to take the stand and clear the defendant’s good name.

EXAMPLE: Prior to Henry’s trial for sexual assault, his attorney, Clyde, discovers that Henry’s twin brother, Raymond, long thought to be dead, is in fact alive and well and lives just minutes from the crime scene. Henry’s attorney decides to hold onto this “ace up his sleeve” and wait for just the right moment to call Raymond as a witness. After the prosecution rests, having called the victim to the stand who pointed to Henry and accused him of being her attacker, Clyde seeks to introduce Raymond as a witness. While the fact of Clyde’s existence, including his address, and his remarkable likeness to Henry can and would would be useful to Henry as evidence, Henry will be deemed to have waived his right to have this witness appear before the court and provide favorable testimony, by not providing the prosecution with information as to the defense's intent to call Clyde as a witness.