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GETTING YOUR WITNESS TO THE COURTHOUSE

COMPULSORY PROCESS OF DEFENSE WITNESSES

Sixth Amendment “compulsory process clause” guarantees a defendant the right to have the attendance and testimony of witnesses in his behalf. Chambers v. Mississippi, 410 US 284, 302 (1973) (overturning state “voucher” rule); Webb v. Texas, 409 US 95, 97-8 9Holding that judges unnecessarily strong admonition regarding perjury law had effect of exerting “such duress on the witness’ minds as to preclude him from making a free and voluntary choice whether or not to testify”); US v. Heller, No. 86-5966 (11th Cir. 1987) (holding where government agents intimidated an important defense witness into testifying falsely, the defendant is deprived of his right to present testimony in his defense).

Admonition to defense witness by court or prosecution which interferes with witness’ “free and unhampered determination … as to whether to testify and if so as to the content of such testimony” constitutes a deprivation of the defendant’s Sixth Amendment right to “Compulsory process.” Webb v. Texas, 409 US 95 (1972) (stating court’s admonition); US v. Thomas, 488 F.2d 334 (6th Cir. 1973) (noting government agent’s admonition); US v. Morrison, 535 F.2d 233, 228 (3d Cir. 1976) (noting prosecutor’s admonition); US v. Hendricksen, 564 F.2d 197 (5th Cir. 1977) (noting plea bargain of co-defendant included promise not to testify).

But, at least one court has held that where the defense refused to provide the prosecution with a list of witnesses, the trial court’s refusal to permit the defendant to call three of his expert witnesses was a proper sanction for abuse of discovery. See Chappee v. Rose, 843 F.2d 25 (1st Cir. 1988).

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