The Compulsory Process Clause

The Compulsory Process Clause is part of the 6th Amendment to the Constitution of the United States, and the first ten amendments, also known as the Bill of Rights. This clause guarantees you the right to call witnesses to testify in your behalf if you are charged with a crime, and to compel those witnesses to testify if they refuse. The Compulsory Process Clause reads like this:

"In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor."

Purpose of the Compulsory Process Clause

The Compulsory Process Clause protects people from unjust or unfair criminal accusations by allowing them to call for witnesses who will testify in their behalf. If the defendant calls for a witness who refuses to testify, he can request that the state subpoena him. The witness will have to obey the subpoena and come in to testify, or be in contempt of court.

It is very important that the witnesses can be compelled to come in. Imagine being accused of a crime and not being able to defend yourself. Maybe someone knows something about the crime, perhaps that you couldn't have been there at the time because you were with him. Or maybe they know something about who really did it.

Either way, if you ask them to testify for you, they might be afraid or embarrassed. They might not want the publicity a trial might bring. There are many reasons someone might not want to testify in court. If they refuse, you might not have any other way to defend yourself.

With the Compulsory Process Clause guarantee, the state can force the witness to come in to testify. It might not be very pleasant, but the Founding Fathers judged the right to defend oneself in court so important that they wrote it into the 6th Amendment to the Constitution.

Another right that the Compulsory Process Clause establishes is that you have the right to testify for yourself in your own trial. In some cases, in both Common Law and in colonial history, defendants could not testify for themselves in their own trial. The Founding Fathers abolished that practice because they believed it was inherently unfair to forbid someone to defend himself. Even the defendant's testimony obtained through the use of hypnosis is admissible as part of one's defense!

History of the Compulsory Process Clause

The idea of Compulsory Process is a relatively new one to English law. The English Common Law, from which all American law is derived, contained several provisions that were not very favorable to defendants.

First, if anyone was charged with a crime, he was not allowed to testify in his own behalf. Common Law reasoned that the testimony of anyone in this position would be unreliable because of his personal interest in the outcome. This seems very unjust to us today because we have held it as a given that you should be able to defend yourself in court for several centuries now. But it wasn't always that way. Even in colonial America, this tradition held. You could not testify in your own behalf if charged with a crime.

Secondly, if you were charged with certain types of crimes, such as treason or a felony, under Common Law, you could not call for any witnesses to testify for you. This custom also passed on to colonial America and it was still common even after England had abolished the practice.

After the Revolutionary War, several states added Compulsory Process Clauses to their constitutions. They wanted to guarantee not only that defendants could call for witnesses to testify in their behalf, but also wanted to provide a method to force witnesses to testify if necessary. The whole idea was to protect the right of the accused to be able to defend himself.

James Madison presented twenty proposed amendments to the Constitution to the First Congress on June 8, 1789. He did this to appease those who were in the Anti-Federalist party who believed that the Constitution did not provide enough protection of individual rights, or enough restrictions on the government. You can read James Madison's June 8 speech here.

The right to Compulsory Process was part of Madison's recommendations that day. The ideas in the Compulsory Process Clause were so widely accepted that the representatives in Congress didn't even have any discussion about it before approving it. Eventually, the Congress chose twelve amendments to pass on the the states for ratification. Ten of those were approved by the States. They became law on December 15, 1791. The Compulsory Process Clause became part of the 6th Amendment. The First Ten Amendments are also known as the Bill of Rights. You can read more about the Bill of Rights' Purpose here.

Compulsory Process Clause in everyday life

The right to have witnesses at trial is not absolute, as with most provisions in the Bill of Rights, the 6th Amendment's Compulsory Process Clause can be waived in some instances.

For example, it is understood law that both sides of the case will be allowed to cross-examine witnesses and evidence. Both sides must inform the attorneys for the other side of any witnesses or evidence they will present in the trial and they must inform them ahead of time, in order for the opposing side to prepare a defense against the witness or evidence. If the court finds that the defense did not inform the prosecution sufficiently early, in order to gain a tactical advantage in the trial, the judge can bar the witness from testifying.

Another situation that would call for the defense not being able to obtain a witness occurs in the situation of a crime in which there is more than one suspect involved, and who refuse to testify in the trial, pleading their 5th Amendment right to avoid self-incrimination. In this case, one suspect might wish the other to testify in his behalf, but the second suspect refuses to testify in order to protect himself. In this case, the Confrontation Clause guarantee is waived because the 5th Amendment Self-Incrimination Clause overrides it. Accomplices in a crime are allowed to testify in each other's behalf if they choose.

The Court must use its power to compel witnesses to testify for the defendant if the witness refuses to testify or if the defendant is having trouble finding him. Sometimes the court will charge the defendant the cost of finding the witness and bringing him to the trial. Even if the defendant is broke and cannot pay the costs, the state has to make every effort to get the witness there or the Compulsory Process Clause has been violated.

You can read about several interesting and significant Sixth Amendment Court Cases dealing with the Compulsory Process Clause here.

Other 6th Amendment clauses:

Speedy Trial Clause
Public Trial Clause
Right to Trial by Jury Clause
Arraignment Clause
Confrontation Clause
Right to Counsel Clause


Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

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