Indiana Law Review Indiana Lai^ Review Volume 9 April 1976 Number 4 The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials Robert N. Clinton Introduction 713 I. The Development of the Criminal Trial from the Defense Viewpoint 715 A. The English Common Law Experience 715 B. Colonial Practice 722 II. The History of the Fifth and Sixth Amendments 728 A. Early State Constitutions 728 B. The Background of the Fifth and Sixth Amendments 731 C. Legislative History of the Fifth and Sixth Amendments 732 III. Developments After the Bill of Rights : The Creation of New Obstacles in the Defendant's Path 739 IV. The Supreme Court and the Emergent Right To Present a Defense 742 A. Early Decisions: The Evidentiary Focus 742 B. The Court's Early Constitutional Framework: Due Process and the Right To Be Heard 747 C. Criminal Procedure in the Supreme Court Since 1960: The Emergence of the Right To Present a Defense 756 V. Beyond Chambers: In Search of a Standard of Review 793 A. In Search of a Constitutional Source 793 B. In Search of a Constitutional Test 795 C. Waiver and Harmless Error 801 VI. The Criminal Trial and the Impact of the Right to Present a Defense 803 A. Evidentiary Exclusion and the Right to Defend 805 1. Reliability, Relevancy, and the Right to Present a Defense 806 711 712 INDIANA LAW REVIEW [Vol. 9:711 2. Scientific Evidence: The Right to Introduce Exculpatory Polygraph, Narco-Interrogation, and Hypnosis Evaluations 810 3. Testimonial Privilege and the Right to Defend 815 B. "The Preclusion Sanction" : Procedural Default and the Right To Defend 830 C. The Right To Defend and Access to Defense Evidence 841 1. Brady v. Maryland and Constitutional Dis- covery 841 2. Physical Access to Defense Evidence and the Right to Defend 844 ; 3. Prosecutorial or Judicial Actions Which Dis- courage Defense Witnesses from Testifying 848 4. Trial Scheduling and the Right to Defend 850 D. The Right To Appear Pro Se : The Right To Defend and Its Relationship to Appointment of Counsel 852 E. The Right To Defend in Other Contexts 856 VII. Conclusion 857 1976] RIGHT TO DEFEND 713 The Right to Present a Defense: An Em^ergent Constitutional Guarantee in Crini^inml Trials Robert N. Clinton* Introduction Many of the protections for criminal defendants enumer- ated in the fifth and sixth amendments to the United States Constitution are addressed to the defendant's rights at trial. Yet, strikingly, there is no clearcut statement in the Bill of Rights or elsewhere in the United States Constitution guaranteeing the ac- cused a right to present his defense at trial. The sixth amendment gives the defendant the right "to have the Assistance of Counsel for his defence" and the availability of "compulsory process for obtaining witnesses in his favor." Thus, it assumes the presenta- tion of some sort of defense on the part of the defendant. While the compulsory process clause of the sixth amendment assures a means of compelling the attendance of witnesses, it does not expressly grant the right to present their testimony. Was that omission deliberate? Was the right to present a defense so obvious that it was assumed? Did the Framers intend the fifth and sixth amendments to grant a right to present a defense? Does any such right exist? Increasingly, developments since the adoption of the Bill of Rights have posed new evidentiary and procedural obstacles which effectively hinder or preclude criminal defendants from present- ing certain evidence in support of a defense. As evidentiary rules became more formalized during the nineteenth century, criminal judges frequently excluded on technical evidentiary grounds por- tions of the accused's case which were arguably material and vital to his defense. Similarly, procedural formalization during the twentieth century has had the effect of posing new obstacles to the presentation of the defense case. For example, alibi-notice rules and statutes' have utilized exclusion of defense testimony as a sanction for procedural default; and, despite the Supreme Court's repeated reservations of the constitutionality of such ex- clusions,^ the recently adopted Federal Rules of Criminal Pro- *Associate Professor of Law, University of Iowa College of Law. B.A., University of Michigan, 1968; J.D., University of Chicago, 1971. ^The first alibi-notice statute was adopted in Michigan in 1927. Mich. Pub. Act No. 175, ch. 8 (1927) (codified at Mich. Comp. Laws Ann. §§ 768.20- .21 (1968)). ^See, e.g., Wardius v. Oregon, 412 U.S. 470, 474 n.6 (1973) ; Williams v. Florida, 339 U.S. 78, 83 n.l4 (1970). But cf. Nobles v. United States, 422 U.S. 225, 241 (1975). 714 INDIANA LAW REVIEW [Vol. 9:711 cedure also utilize this ''preclusion sanction'' for procedural de- faults in discovery orders and for failure to supply pretrial notice on various matters.^ The Framers of the Bill of Rights never envisioned the de- velopment of these difficulties and therefore did not provide ex- press protections against them. While American constitutional law during the past tv^o decades has become increasingly concerned with criminal procedures relating to subjects such as confessions, search and seizure, and self-incrimination, this constitutional revo- lution in criminal law has not experienced a concomitant analytical development of protections designed to facilitate the accused's ability to present evidence and witnesses favorable to his defense. Most of the cases in the recent revolution in criminal procedure provide restraints on evidence and procedure which may be em- ployed by the government against the criminal defendant rather than loosening the restraints on evidence and procedure which may be employed by a defendant in his own behalf. This lack of theoretical development of a right to present a defense is not the result of a lack of opportunity for the judiciary. The United States Supreme Court has had occasion to review many cases which touch on this issue'^ and yet has rarely suggested that the criminal defendant has a right to present his defense or explained the appropriate test to be applied to such a guar- antee.^ Instead, the Court has usually treated each case as sui generis and has often chosen to ground its decisions on one of the specific guarantees in the fifth and sixth amendments, thereby straining, often beyond recognition, the language of many of the substantive guarantees involved.^ Thus, little theoretical grovrth has taken place with respect to assuring a right to present a de- fense. It is the purpose of this Article to attempt to analyze such de- cisions and the historical developments from which they emerged and thereby to suggest that there is a federally protected con- stitutional right of an accused to present a defense. This Article will delineate the contours and implications of this right and will provide a new framework in which to analyze problems of criminal procedure relative to exclusion of defense evidence. As with many =Fed. R. Crim. p. 12.1. ^See, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973) ; Brooks v. Tennessee, 406 U.S. 605 (1972); Washington v. Texas, 388 U.S. 14 (1967); Ferguson v. Georgia, 365 U.S. 570 (1961) ; In re Oliver, 333 U.S. 257 (1948). -But see Washington v. Texas, 388 U.S. 14, 19 (1967) ("Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has a right to present his own witnesses to establish a defense."). ^See, e.g., Brooks v. Tennessee, 406 U.S. 605 (1972) ; Ferguson v. Georgia, 365 U.S. 570 (1961). 1976] RIGHT TO DEFEND 715 constitutional quests, the appropriate starting point is an analysis of the historical context in which the Bill of Rights guarantees were adopted. Of particular interest is the development of the criminal trial from the standpoint of the accused's ability to present testimony and witnesses in his defense. Such an analysis is crucial to understanding the spirit in which the fifth and sixth amendments' guarantees were proposed and adopted. I. The Development of the Criminal Trial from the Defense Viewpoint A. The English Common Law Experience Under early Anglo-Saxon law, the defendant was not entitled to a trial if apprehended in the criminal act, but was subject to summary punishment.^ If not "caught in the act," the defendant was convicted by mere accusation unless he could muster a speci- fied number of compurgators to swear on oath to his innocence. ° The number of compurgators required was at least as numerous as the number of persons who swore to his guilt.' Thus, these early English trials, conducted in hundred court or liet court, were mere swearing contests, often based on reputation, with no evidence presented in any formal sense. ^° The court served only the ministerial function of assuring that each compurgator was sworn. There was no weighing of evidence—only a counting of heads, and the court had little control over the whole process. ^^ After the Norman Conquest in England, criminal procedure began to take on new forms. There were essentially two forms of trial at this time, depending on whether there was a specific ac- cuser or the accusation was made by "common report" of the community. ^^ If there was an accuser, the defendant had the right to an "appeal." The "appeal" resulted in a trial by battle between the accused and his accuser unless the evidence against the accused, presented at a preliminary stage of the proceedings, was so strong as to remove all doubt as to the defendant's guilt. In the latter case, the defendant had no right to an "appeal" and ^1 J. Stephen, General View op the Criminal Law of England 8-9 (2d ed. 1890) [hereinafter cited as Stephen, General View]. «/d at 11. Ud, ^^Id. Interestingly, the early English apparently had little faith in the accuracy of their own trial mechanism since the punishment for conviction at such a trial by compurgators was usually only indemnification of the person injured (with the possibility of punishment upon default). Id. '2/cf. at 16-17. 716 INDIANA LAW REVIEW [Vol. 9:711 was summarily executed.'^ Neither the appeal nor the common report afforded the defendant an opportunity to present evidence. On the other hand, if the accusation was by common report, Norman law allowed a trial by jury in which the jurors were both the witnesses and the triers of fact. The jurors apparently tried the defendant based on all information available to them, presumably including his reputation. '"* Trial by ordeal was also used in connection with a cause begun by common report.'^ The criminal trial based on the presentation of evidence by witnesses apparently began to take form during the reign of Queen Mary'* and experienced a painfully slow growth and evolution which has continued into the twentieth century. Unfortunately, the history of that evolution is sketchy because no series of com- prehensive reports of the trials survive. Indeed, much of the history available is based almost exclusively on one source—^the reports in State Tnals.^^ These reports deal primarily with im- portant cases in English history, most of which involved political crimes. Thus, these reports do not reflect, and in fact little is know^n until the eighteenth century, of the fashion in which the average criminal trial was conducted in the outlying counties in England.'^ From the available data, it appears that the criminal trial based on the testimony of witnesses and the presentation of evi- dence (at least for the Crown) began sometime between 1477 and 1544. Judge Stephen notes that the available records of the trial of Sir Thomas More in 1535 reflect the presentation of some evidence and testimony.'' The rudiments of the modern trial seem to have emerged by that date. From the sixteenth century on, the record is somewhat clearer, although it is still based on notorious political cases. The sixteenth century criminal trial seems to have been a proceeding substantially oriented to the advantage of the Crown since the defendant had minimal opportunity to present any defense. In a felony case, the defendant was denied the assistance of counsel and was refused ^Ud. at 20-21. See also 1 J. Stephen, History of the Criminal Law of England 244-72 (1883) [hereinafter cited as Stephen, History]. The appeal fell into disuse in England after the lessening of the Norman influence, but it was not formally abolished until 1819. Stephen, General View, supra note 7, at 21. '^Stephen, General View, supra note 7, at 16; 1 Stephen, History, supra note 13, at 254-60. ^1 Stephen, History, supra note 13, at 255-58. '^/d. at 304. 'Ud. at 319 n.l. ^^See generally J. CocKBURN, History of English Assizes 1558-1714, at 125 (1972). ^'1 Stephen, History, supra note 13, at 320-24. 1976] RIGHT TO DEFEND 111 a copy of the indictment on which he was to be tried.^*^ The Crown was permitted to call witnesses, but the defendant had no absolute right to call any witnesses or present any evidence in his ov/n be- half.^' The accused could address the jury personally, but that right was virtually the only manner in which he could defend himself. Indeed, that right to address the jury often was not terribly useful since the accused, without access to the indict- ment, might not even know the reason for his indictment prior to the trial." However, the accused was generally given a free rein in his address to the jury^^ since rules of evidence and concepts of materiality had not yet developed to impede the accused's argu- ments and protestations of innocence to the jury.^^ The trial of this period was relatively free form. For example, the defendant often answered the Crown's witnesses as they testified or im- mediately thereafter—a practice which fell into disuse in the seventeenth century." The origin of and the justification for the pro-prosecution procedures of the sixteenth and early seventeenth century English criminal trial remain somewhat obscure. The accused apparently could not receive a copy of the indictment because in form it was styled as a presentment to the Crown." Seemingly, the defendant was denied counsel because it was the prosecutor's duty to prove the Crown's case so completely that no defense was possible. ^^ While this rationale may also have supported the refusal to permit the defendant to present witnesses in his own behalf, tlie possibility also exists that no defense witnesses were permitted because it was thought unseemly, if not treasonous, to allow anyone to be a witness against the Crown—a sublime elevation of form over substance.^* Two cases in the second half of the sixteenth century effec- tively illustrate the nature of the criminal trial of those times. In Throckmorton's Case,'^'^ the defendant, accused of treason, re- quested that a witness named John FitzWilliams be called and sworn in his behalf. The court refused the request and instructed 2°9 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 224 (3d ed. 1944) [hereinafter cited as Holdsworth]. ^Ud, at 229. See also 2 J. Wigmore, A Treatise on the Anglo-American System of Evidence § 575, at 684 (3d ed. 1940) [hereinafter cited as Wigmore]. ^^^5 Holdsworth, supra note 20, at 183. "9 id. at 233. 2*3 id. at 615 (5th ed. 1942). 275 id. at 192 (3d ed. 1944). 2»See notes 31-32 and accompanying text infra. ^"^ Trial of Nicholas Throckmorton, 1 Complete Collection of State 71S INDIANA LAW REVIEW [Vol. 9:711 the \\itness to go on his way. All the defendant was allowed to do during this trial was to question or respond to the Crown's witnesses and to address the jury before it retired. Similarly, in Udell's Case,^° the accused offered certain witnesses in his felony trial. The report of the case indicates that the following ex- change occurred when the witnesses were offered: And further, if it please you, my lords, here are some witnesses that upon their oaths will testify how diversely [a Crown witness] hath reported of his confession to this thing, if it please your lordship to accept them. And the witnesses offering themselves to be heard, were an- swered that because their witness was against the queen's majesty, they could not be heard. ^' Remarkably, when Udall was later before the court for sentenc- ing and apparently moved to arrest the judgment, the court was again confronted with the same evidence and responded by asking Udall why he had not pled the matters which he was then raising to the jury. Udall unsuccessfully answered: I did so; and offered to produce sufficient proof for it; but your lordships answered that no witnesses might be heard in my behalf, seeing it was against the queen; which seemeth strange to me, for methinks it should be for the queen to hear all things on both sides, especially when the life of any of her subjects is in question.^^ Apparently this substantial lack of balance and fairness in the English criminal trial began to concern English jurists and citizens during the late sixteenth century and increased rapidly until the middle of the seventeenth century. This rising concern v^th criminal procedure appears to be the direct result of judicial excesses, particularly in treason trials, which had affected a wide range of English society. ^^ Thus, English procedure began to change during the seventeenth century. Legislative efforts were made to cure the summary nature of criminal proceedings toward the end of the sixteenth century and the beginning of the seventeenth. The first efforts to at- tack the problem occurred haphazardly. Thus, a 1589 statute entitled **An act against the embezzling of armour, habiliments of war and victual" provided that in a trial for that crime, the defendant was permitted "to make any lawful proof that he can, Trials 869 (Guildhall 1554). ^^Trial of John Udall, id. at 1271 (Croydon assizes 1590). ^VcZ. at 1281. 32/d at 1304. ^^Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 88 (1974). 1976] RIGHT TO DEFEND 719 by lawful witnesses or otherwise, for his discharge and defense in that behalf, any law to the contrary not withstanding. -'- Of course, this provision permitting the presentation of witnesses did not fully comport with then contemporary court practice. A statute adopted in 1606 in order to reconcile certain hostilities be- tween England and Scotland, provided that in trials of English subjects for crimes committed in Scotland, witnesses were to be allowed for the accused, and such witnesses could testify under oath.^^ Thus, not only could the defendant's witnesses in such a case give testimony, but they could also be sworn—a further de- parture from English procedure of that time. The attack on the restrictions on an accused's ability to defend himself thus was be- gun by ad hoc parliamentary efforts to change the prevailing court rules. The dissatisfaction with the rules precluding the defendant from presenting witnesses was also felt in the courts, and con- sequently the sixteenth and seventeenth centuries saw a slow growth in the willingness of English courts to hear defendants' witnesses. ^^ At first, there were various restrictions on the ac- cused's privilege of presenting witnesses. One restriction was that defense witnesses could only adduce facts inconsistent v^ith guilt^^ rather than directly contradict the Crown's witnesses.^® Another impoi'tant, although possibly formal, restriction was the fact that, initially, such witnesses could not, unlike the Crown's witnesses, be sworn. ^' However, the criminal practice continued to evolve, and by the seventeenth century, the taking of sworn 3^31 Eliz. 1, c. 4, §2 (1589) (emphasis added). ^^4 Jac. 1, c. 1 (1606). Blackstone commented on this statute as follows: The House of Commons were so sensible of this absurdity [refusing the defendant witnesses in his behalf] that in the bill for abolishing hostilities between England and Scotland when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties, they insisted on a clause and carried it against the efforts of both the Crown and the House of Lords, against the practice of the courts in England and the express law of Scotland, "that in all such trials, for the better discovery of the truth, and the better information [as above], there shall be allowed unto the party so arraigned the benefit of such witnesses, only to be examined upon oath, that can be produced for his better clearing and justification as hereafter in this Act are permitted and allowed." 4 Blackstone, Commentaries *360, quoted in J. Thayer, A Preliminary Treatise on Evidence at the Common Law 159 n.4 (Kelley ed. 1969). This statute apparently had a long history. Pickering Statutes notes that it was altered by 7 Jac. 1, c. 1 (1909), revised and enforced by 13 & 14 Car. 2, c. 22 (1662), and abrogated in 5 Anne, c. 8 (1706). ^*9 HoLDSWORTH, supva note 20, at 224. ^"^E.g., alibi, self-defense, or that a person supposed dead was alive. ^^5 HoLDSWORTH, 8upra note 20, at 175. 720 INDIANA LAW REVIEW [Vol. 9:711 testimony from the defense witnesses had apparently taken root. Nevertheless, the defendant still had no formal means available to compel his witnesses' attendance or ascertain what testimony they would have given when unable to attend. The turn of the eighteenth century saw a rapid expansion of defendants' rights and a rapid movement toward a trial mech- anism more evenly balanced between the Crown and the accused. In 1695, Parliament enacted a statute'*^ which, in cases of treason and related crimes, gave defendants the following rights: (1) the right to secure a copy of the indictment upon payment of the prescribed fee, albeit without the names of the Crown's witnesses, which were usually endorsed on the indictment, in order "to ad- vise with counsel thereupon, to plead and make their defense"; (2) the right to counsel, apparently including assigned counsel; (3) the right to produce witnesses and have them heard under oath; (4) the right of compulsory process to compel the attendance of witnesses ; (5) the right to limit evidence of the overt treasonous act to that specified in the indictment;'*' and (6) the right to have a list of the panel of jurors two days in advance of trial. This expansion of defendants' trial opportunities continued in 1701 when Parliament passed a statute"*^ which granted the criminal defendant in any felony trial the right to have witnesses give testi- mony under oath in his behalf. Yet, during the eighteenth century, defendants in England who were not charged with treason and related crimes still had no statutory right to have their defense presented by counsel,"*^ no right to compel the attendance of witnesses, no right to a copy of the indictment, and no right to give sworn testimony in their own behalf, although they could always address the jury.^^ Most of these difficulties continued in English practice into the nine- teenth century. 40r '1 Will. 3, c. 3 §§5.1, 7, 9 (1695). "* 'Apparently this provision was designed to enable the defendant to adequately prepare his defense. ^=1 Anne. 1, c. 9, §§3, 5 (1701). "^England finally gave all defendants a right to have counsel present their defense in the Prisoners' Counsel Act of 1836. 6 & 7 Will. 4, c. 114, § 2 (1836). Accused misdemeanants had traditionally had the right to counsel at trial. 1 Stephen, History, supra note 13, at 341; 2 Holdsworth, swpra note 20, at 312 (4th ed. 1936). "^^The defendant was not fully competent to testify in his own behalf in England until 1898. L. Levy, Origins op the Fifth Amendment 324 (1968) [hereinafter cited as Levy]. However, various methods of permitting the defendant to testify, including separate examination by a magistrate, apparently became current during the 19th century. These methods are well summarized, together with relevant statutory citations, in 1 Stephen, History, awpra note 13, at 440-41. 1976] RIGHT TO DEFEND 721 Other aspects of the English practice which favored the Crown continued even during the eighteenth century. For example, the trial of a defendant held in custody took place immediately follow- ing the arraignment. The speed of the trial was particularly ad- vantageous to the Crown since the defendant charged with a felony other than treason and related crimes, would not have access to the indictment before arraignment and, therefore, would not be fully conversant with the exact nature of the charge until he was tried/^ Immediate trial following arraignment thus prevented the presentation of a full defense/^ Another English practice which ran counter to the notions of a balanced trial procedure was the summary conviction. By statute,''^ a defendant who refused to plead could be summarily convicted. Similarly, under eighteenth century English practice, a defendant who filed a demurrer admitted the facts of the in- dictment, just as in a civil case; if he was overruled, he could not plead over but was summarily convicted."^® However, some tendency was evident in English court prac- tice during the eighteenth century to ameliorate some of the rigors of these unbalanced procedures for felony trials. For ex- ample, by the time of the American Revolution, it was not un- common to permit counsel to question and cross-examine wit- nesses on the defendant's behalf; the only limitation was that counsel could not directly address the jury.^' Even though eight- eenth century English law continued to preclude the accused from testifying on his own behalf, he was allowed to address the jurors freely in his summation, and his statements, while tech- ^^J. GoEBEL, Jr. & T. Naughton, Law Enforcement in Colonial New York 610-11 (1944) [hereinafter cited as Goebel & Naughton]. '^^However, the practice in England at Quarter Sessions was to have the defendant, if he was a resident of the area, plead in one session of court and to try the case in the ensuing session unless there was consent to an immediate disposition. While the judges of Oyer and Terminer and Gaol Delivery had the power to compel immediate trial, the practice at the Assizes paralleled that of Quarter Sessions. Id. at 611. The practice in King's Bench was that a nonresident defendant had to be given advance notice of when his trial was to take place. Id, citing Rules and Orders of King's Bench (2d ed. 1747), Mich. 4 Anne, note c and 14 Geo. 2, c. 17, §4. Accordingly, there was some delay which permitted a modicum of preparation. ^^12 Geo. 3, c. 20, §1 (1772). ^®GoEBEL & Naughton, supra note 45, at 598, citing Coke, Second Institutes 178. Apparently Sergeant Hawkins, writing in 1724, cast some doubt on the validity of this rule in felony cases, 2 W. Hawkins Pleas of THE Crown c. 69, § 3 (7th Ed. 1795). However, Blackstone disregarded Hawk- ins and urged the propriety of the rule. 4 Blackstone, Commentaries *334. ''Levy, supra note 41, at, 322-23. Yet as late as 1760, Stephen finds a defendant being denied the assistance of counsel despite the fact that his defense was insanity. Stephen, General View, supi-a note 7, at 46. 722 INDIANA LAW REVIEW [Vol. 9:711 nically not evidence, were entitled to the jurors' full considera- tionr^" In short, with some exceptions, the trend in the English crimi- nal trial as it emerged in the late eighteenth century was one of balance. Increasing stress was placed on the right of the defendant to fully prepare and present his defense. Professor Levy summed up the tone of the eighteenth century English crim- inal trial and the status during this period of the accused's rights as follows: Accordingly, by the early eighteenth century both judicial and statutory alterations in procedure made it possible for a defendant to present his defense through witnesses and by counsel. As a result, though he always retained his right to address the court unsworn at the close of trial, and to range freely over any matters of his choice, he was no longer obliged to speak out personally in order to get his story before the jury, to rebut incriminating evidence, or to answer accusations by the prosecution.^^ B, Colonial Practice As hazy as the picture of English criminal procedure is for the sixteenth, seventeenth, and eighteenth centuries, the outline ^°Stephen, General View, supra note 7, at 187. The history of the defendant's disqualification from testifying in his own behalf is a rather remarkable one. Stephen suggests that the accused was commonly questioned by the court and sometimes by the Crown's attorney until the Revolution of 1688. Id. at 186; Stephen, HistoPvY, supra note 13, at 325-26. This comports with the relatively free-form fashion in which the criminal trial was conducted until approximately the 18th century. As procedures became more rigid and rules of evidence slowly crept into the proceedings, the interest disqualification was applied to criminal as well as civil trials. However, in England and in the United States, this interest disqualification was last abolished in the criminal arena. See generally 2 Wigmore, supra note 23, §§ 575-80. Of the testimonial disqualification of the criminal defendant on the ground of interest, Stephen wrote: It is remarkable that this omission, which is one of the most characteristic peculiarities of the English system of procedure, owes its origin to nothing else than recent practice. It rests upon no express authority, and no general principle judicially laid down. The modem practice is not older than the Revolution. Stephen, General View, supra note 7, at 191. Levy suggests that the testi- monial disqualification of the accused arose from the fact that his testimony would have been to his numerical advantage under the Anglo-Saxon trial practice of merely counting the number of compurgators. Levy, supra note 44, at 324. However, Stephen's statement of the history of the rule suggests that it arose at least 600 years after the trial by compurgators had fallen into disuse in England. '^Levy, supra note 44, at 323. 1976] RIGHT TO DEFEND 723 of the early American colonial experience is even less clear. De- spite the fact that many of the early colonists had fled England to avoid persecution, they appear to have made little effort to im- prove on English criminal procedure." The colonists regarded themselves as having all the rights of Englishmen, and, therefore, tried to perpetuate the criminal procedure used in their mother- land." However, as the early New York cases demonstrate, innova- tion did in fact occur, probably because the early colonists lacked detailed familiarity with English procedure. Thus, the first re- ports of trials in New York at the 1665 Assizes reveal that the defendants were not permitted to challenge the jury panel, that the evidence was presented solely in written form, and that the defendant was permitted to examine the evidence before entering his plea.^"^ These earliest New York reports also reflect no ef- fort to present any testimony for the defense," apparently be- cause the accused assumed that such testimony would not be heard." In later New York trials in 1669 and 1675, witnesses were called for the defendant but, as in English practice of the period, they were not sworn.^' By 1685, defense witnesses began to be sworn in misdemeanor cases in New York and, in 1686, counsel began to appear on be- half of the accused.^® However, as in English practice of the day, defense counsel's role was often limited in felony cases to argu- ment on points of law.^' If no points of law were raised, no right to counsel existed. While the evidence is sketchier regarding the seventeenth century practice in other colonies, it appears that the patterns were similar. For example, neither Maryland nor Rhode Island permitted the taking of the defendant's testimony under oath.''° And while both Maryland and Rhode Island granted the right to ^^GoEBEL & Naughton, swpra note 45, at 557-58. ^^SeCy e.g., First Charter of Virginia, 1606, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 54-61 (1971) [hereinafter cited as Schwartz]. [Citizens of Virginia] shall have and enjoy all Liberties, Franchises, and Immunities, Avithin any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions. Id. at 59-60. ^"^GoEBEL & Naughton, supra note 45, at 558-59. 557cZ. at 559. ^'^Defendant's witnesses were commonly heard, although not sworn, in England during this period. See notes 29-32 supra and accompanying text. ^''GoEBEL & Naughton, supra note 45, at 561. ^Hd. at 572. ^nd. at 573-74. '^°Levy, supra note 44, at 355-56. 724 INDIANA LAW REVIEW [Vol. 9:711 counsel at any trial for an indictable offense in 1641 and 1669 respectively, Rhode Island limited the grant by allowing the counsel ''to plead any poynt of lav: that may make for the clear- ing of his [the accused's] innocencye/'*^ Massachusetts limited the right to counsel to those who found themselves "unfit to plead [their] ovni cause [s]."°' Apparently, seventeenth century colonial practice paid only slight attention to accused's ability to present a defense. For example, in 1675 New York tried a defendant for incest despite the fact that the defendant never put in an appearance/^ This prac- tice of ex parte trial continued into the eighteenth century in misdemeanor cases, the failure to appear apparently being viewed as the equivalent of a confession/^ In addition, a defendant who appeared but refused to plead was fined under early New York practice." Virginia also seems to have allowed summary convic- ^^Massachusetts Body of Liberties § 26 (1641), reprinted in 1 Schwartz, supra note 53, at 74. Interestingly, the right set forth therein is not merely a right to counsel, but a right to have "any man" plead the defendant's case. Id. *^G0EBEL & Naughton, supra note 45, at 562-63. Apparently, the reason for the trial was the necessity of regularizing the confiscation of the de- fendant's property. Id. at 63. *^/rf. at 579-81. From 1693 to 1776, the records of the New York Supreme Court show the entry of 54 defaults; and during the period from 1691 to 1776, the New York Court of Quarter Sessions entered 17 default convic- tions. The supreme court previously dealt with felony and serious misde- meanors. Id. at 598. In the Court of Quarter Sessions, where only minor misdemeanors were tried, most cases were disposed of by a plea of guilty as reflected by the following table : Pleas in New York Court of Quarter Sessions 1691-1776 Plea Guilty 248 (69%) Not Guilty 94 (26%) Default Conviction for Failure to Plead or Appear 17 ( 5%) The comparable statistics for the New York Supreme Court en banc are as follows: Pleas in the New York Supreme Court 1693-1776 Plea Guilty or Confession 91 (16%) Not Guilty 429 (74%) Default Conviction for Failure to Plead or Appear 54 ( 9%) Unclear 5 (.6%) Id. at 597 & n. 193. ^^Id. at 565. The English practice was to summarily convict as if by confession. See note 47 supra & accompanying text. It is not entirely clear whether the Colonies followed the English practice of preventing the accused from pleading over following a demurrer, thereby summarily convicting the accused if his demurrer was unsuccessful. Goebel and Naughton report only three instances of the demurrer being invoked in a criminal proceeding in 1976] RIGHT TO DEFEND 726 tion since it permitted the entry of an immediate death sentence on a defendant who exceeded his available peremptory challenges to the jury venire/* During the seventeenth century, Pennsylvania seemingly went further than the other colonies in protecting the defendant's right to present his defense. In section VI of the Pennsylvania Frame of Government of 1682, the defendant was given the right to ''freely appear in [his] own way, and according to [his] own manner." Pennsylvania thus seemingly permitted a defendant to testify in his own behalf at a time when English and customary colonial practice denied such a right/^ This provision also adopted the Maryland practice of giving defendants the right to "person- ally plead their own cause themselves; or, if unable, by their friends," thereby creating an implied right to counsel. Sec- tion VI of the Pennsylvania Frame of Government further as- sured the defendant time to marshal his defense by requiring that the complaint upon which he would be tried be served upon him not less than ten days before trial. In 1701 Pennsylvania adopted its Charter of Privileges, article V of which provided: "That all criminals shall have the same Privileges of Witnesses and Council as their Prosecutors."*^ Defendants in Pennsylvania trials there- fore were granted a right to call witnesses equivalent to English practice adopted the same year as well as an expanded right to counsel, which was not granted to Englishmen in all felony cases until the nineteenth century.*' Eighteenth century colonial experience paid even greater at- tention to the accused's rights at trial. Indeed, the increasing disenchantment with English colonial rule during the latter half of the century placed considerable pressures on the colonial judiciaries and legislatures for pro-defendant reforms. As a re- sult, in the eighteenth century some of the Colonies further re- formed their laws governing the availability of counsel at trial. In 1734 the Virginia legislature granted all defendants charged with capital crimes the full right to counsel. ^° Additionally, the early New York history. All three of the demurrers were successful, thereby precluding a resolution of the issue. Goebel & Naughton, supra note 45, at 599. **H. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia 93 (1965) [hereinafter cited as Rankin]. ^^Pennsylvania Frame of Government §6 (1682), repHnted hi 1 Schwartz, supra note 53, at 140. This provision seems to be a direct response to Rex V. Lukeno, 1 Dall. 5 (1762), in which a Pennsylvania court refused to peimit the accused to give sworn testimony. The court stated that the issue of guilt "must be proved by indifferent witnesses." Id. at 6. ^^Pennsylvania Charter of Privileges § 5 (1701) , reprinted in 1 Schwartz, supra note 53, at 170-73. ^'See note 43 supra, ^°Rankin, supra note Q6, at 89. However, during the eighteenth century, the majority of Virginia criminal cases continued to be tried without the 726 INDIANA LAW REVIEW [Vol. 9:711 defendant could require the sheriff to summon witnesses on his behalf just as was done for the prosecution witnesses/' In New York and other colonies the defendant's witnesses were apparently- sworn and heard during the eighteenth century. The justices' manuals of the day admonished the judges to admit evidence which went against the Crown as well as for it/^ Thus, a conscious effort was made to ameliorate the harshness of the seventeenth century procedures regarding the defendant's witnesses. Further- more, while the accused was still not commonly advised of the in- dictment or permitted to see it until arraignment/^ in New York there was always at least one day after arraignment for the accused to prepare for trial, and, more commonly, the trial would not be held until the next term of court. ^"^ However, the colonial trials of the eighteenth century were not without their pitfalls from the accused's point of view. Coun- sel was not fully available to all criminal defendants and was not permitted to conduct the entire trial. ^^ In New York, the de- fendant was required to set forth his defense at the time of ar- raignment and thereby put the prosecution on notice of his trial strategy without the right to reciprocal discovery. ^^ Hearsay evi- dence was also commonly admitted for and against the defendant, thereby precluding effective confrontation,'^ and summary con- viction for certain procedural defaults continued into the eighteenth century.'® Another obstacle to the presentation of the defendant's defense was his disqualification as a sworn witness in his own behalf—a carryover from English practice. '^ However, the testi- benefit of defense counsel because of the defendants' inability to afford the services of a lawyer. Id. While attorneys often did appear in New York colonial criminal practice, that colony seems to have adhered to the restrictions on counsel's role which were imposed by English and seventeenth century colonial practice. Goebel & Naughton, supra note 45, at 573-74. Thus, in felony cases (with the possible exception of treasonous offenses) counsel could appear only where points of law were at issue. However, where counsel did appear the procedures often became considerably more formalized. Cf. id. at 583-84 (written pleas during the New York colonial experience entered by counsel). And by 1766, pro se oral pleading had become the exception in New York. Cf. id. at 583. ^'Rankin, supra note 66, at 99. ^^GoEBEL & Naughton, supra note 45, at 633. 'Ud. at 583. ^^Id. at 610-11. ^-Id. at 573-74. '''Id. at 579. ''Id. at 643-44. 7svirginia had the rule which permitted summary conviction of a criminal defendant for exceeding his peremptory challenges to the jury, Rankin, supra note 66, at 93, and New York permitted summary conviction for failure to appear or plead, Goebel & Naughton, supra note 45, at 579-81. '''See note 44 supra. 1976] RIGHT TO DEFEND 727 monial disqualification of the defendant was never a grave obstacle to the presentation of the defendant's case because he was always free before or during his summation to address the jurors, and they could take into consideration whatever he said in his own defense.®° The defendant's right to address the jury was viewed as so central to his ability to defend himself that he was allowed "to range freely over any matters of his choice."®' In short, at the time of the Bill of Rights, there remained several procedural hurdles to the presentation of the accused's defense. The most significant of these were addressed in the specific guarantees of the sixth amendment—confrontation, the right to counsel, the right to compulsory process for the produc- tion of the defendant's vv^itnesses, and the right to be informed, presumably in advance, of the nature of the accusation. In enumer- ating the defendant's trial difficulties under eighteenth century New York procedure, Goebel and Naughton list only three, all of which are corrected by the sixth amendment: (1) the harsh rules regarding prior access to the indictment; (2) the limited role for or deprivation of counsel; and (3) the limited subpoena privileges.®^ Thus, the Bill of Rights guarantees appear to have alleviated all or most of the major procedural obstacles present in the late eighteenth century. After the Bill of Rights, the only continuing procedural obstacle for the accused was his own testi- monial disqualification, which was not in fact a major obstruction because of the accused's right to freely and fully address the jury in his own defense. The preceding historical survey obviously raises an important question: Were the specific guarantees of the fifth and sixth amendments really designed and intended, when read as a whole, to give the accused a more general constitutional right to present his defense? In short, was the intent of the Framers of the fifth and sixth amendments really a design to eliminate all the existing obstacles to the presentation of the defense case? This question is certainly of central importance to the issue of whether there is a constitutionally protected right to present a defense. Indeed, ^°The importance of the defendant's right to address the jury is shown in the judicial admonition given to one John Ury, who was charged with conspiracy and being a priest in a colonial New York trial. When Ury tried to open his defense with a speech refuting the prosecution's case, he was interrupted by the court: "Mr. Ury, if you have any witnesses to examine it is more proper you should do that nov/, and make your defence afterwards" Goebel & Naughton, supra note 45, at 660 n.203 (emphasis added). Thus, the ability of the defendant to fully and freely address the jury was viewed primarily as a right to defend himself and present his side of the case to the triers of fact. ^^Levy, supra note 44, at 323. ^^GOEBEL & Naughton, supra note 45, at 633. 728 INDIANA LAW REVIEW [Vol. 9:711 the significance of this right is explained by the fact that many of the current impediments to the accused's opportunities to de- fend are the product of developments which occurred after the ratification of the Bill of Rights, including the increasing formali- zation of and reliance on rules of evidence and procedure. These developments are discussed belov^ in section III. 11. The History of the Fifth and Sixth Amendments The history of the fifth and sixth amendments is, at best, vague regarding the scope of the intended protections of these guarantees. The rights afforded to the accused by the early state constitutions were somewhat varied, and the reports of the con- gressional debates over the fifth and sixth amendments are re- markably limited. Yet, in order to properly evaluate the spirit of these amendments, it is important to review this limited body of historical data. A. Early State Constitutions Pursuant to the call of the Second Continental Congress in May of 1776," the former colonies began to adopt state constitu- tions, many of which formed models for the drafting of the United States Constitution and the Bill of Rights. The process of drafting state constitutions began in 1776 when Virginia adopted its important Declaration of Rights®"* and continued until 1783 when New Hampshire approved its Bill of Rights.®^ Most of these early state constitutions contained bills of rights, which almost invariably granted certain protections to criminal defendants. The trial rights of criminal defendants under these early constitutions were basically the same. Most of the states followed the lead of Virginia and adopted a provision similar to section 8 of the Virginia Bill of Rights : That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an im- partial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be com- pelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.®* ®^l Schwartz, supra note 53, at 228-29. «^7d. at 231. «VcZ. at 374. s'/d. at 235. 1976] RIGHT TO DEFEND 729 Pennsylvania/^ Delaware/® Maryland/' North Carolina/" and Ver- mont'' adopted virtually identical provisions in their first state constitutions. New Jersey, the second state to draft a constitu- ®^Pennsylvania Declaration of Rights §176 (1776), reprinted in 1 Schwartz, supra note 53, at 265: IX. That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment, of his peers. ®®Delaware Declaration of Rights §14 (1776), reprinted in 1 Schwartz, supra note 53, at 278 : Sect. 14. That in all prosecutions for criminal offences, every man hath a right to be informed of the accusation against him, to be allowed counsel, to be confronted with the accusers or witnesses, to examine evidence on oath in his favour, and to speedy trial by an impartial jury, without whose unani- mous consent he ought not to be found guilty. ^^Maryland Declaration of Rights, art. XIX (1776), reprinted in 1 Schwartz, supra note 53, at 282: XIX. That, in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the indictment or charge in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him ; to have process for his witnesses ; to examine the witnesses, for and against him, on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. ''^North Carolina Declaration of Rights, arts. VII-IX (1776), reprinted in 1 Schwartz, supra note 53, at 287: VII. That, in all criminal prosecutions, every man has a right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony, and shall not be compelled to give evidence against himself. VIII. That no freeman shall be put to answer any criminal charge, but by indictment, presentment, or impeachment. IX. That no freeman shall be convicted of any crime, but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used. ^Vermont Declaration of Rights, art. X (1776), reprinted in 1 Schwartz, supra note 53, at 323: X. That, in all prosecutions for criminal offences, a man hath a right to be heard, by himself and his counsel—to demand the cause and nature of his accusation—to be confronted with the witnesses—to call for evidence in his favor, and a speedy public trial, by an impartial jury of the country; without the unani- mous consent of which jury, he cannot be found guilty; nor can be compelled to give evidence against himself ; nor can any man be justly deprived of his liberty, except by the laws of the land or the judgment of his peers. 730 INDIANA LAW REVIEW [Vol. 9:711 tion, chose to follow the language of the Pennsylvania colonial Frame of Government and adopted a provision which merely read, ''That all criminals shall be admitted to the same privileges of witnesses and counsel, as their prosecutors are or shall be entitled to."^^ The last two states to adopt state constitutions, Massachusetts and New Hampshire, followed the Virginia pattern of enumerating specific rights but made one very significant change in language. Article 12 of the Massachusetts Declaration of Rights, adopted in 1780, read in relevant part: No subject shall be held to answer for any crime or of- fense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to ac- cuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by him- self, or his council, at his election.'^ New Hampshire's Bill of Rights was not adopted until 1783 (al- though a governmental charter had previously been adopted), and its protection of the accused's rights was virtually a verbatim reiteration of the Massachusetts formulation set out above.'^ Thus, the later formulations of defendants' rights in state constitutions adopted before the Federal Constitution and Bill of Rights explicitly gave the criminal defendant the right to produce all proofs that may be favorable to him. The fact that the Framers of the fifth and sixth amendments failed to include the language of the Massachusetts and New Hampshire documents or that of the Virginia Bill of Rights assuring the accused the right "to call for evidence in his favour" raises several questions about the intent of the Framers of the federal guarantees. Did the First Congress, which submitted the Bill of Rights for ratification, deliberately intend to exclude an unlimited right of the accused to defend himself? Or rather, did the Framers of the fifth and sixth amendments assume that the Virginia formulation of crim- inal defendants' rights was really coextensive with the Mas- sachusetts formulation and the guarantees of the fifth and sixth amendments? To put the matter another way, did the Framers of the Bill of Rights assume that the specific enumeration of the rights of criminal defendants contained in the fifth and sixth '^N. J. Const, art. XVI (1776), reprinted in 1 Schwartz, supra note 53, at 260. '^Massachusetts Declaration of Rights, art. XII (1780), reprinted in 1 Schwartz, supra note 53, at 342 (emphasis added). 9^New Hampshire Bill of Rights, art. XV (11SS) , reprinted in 1 Schwartz, supra note 53, at 377. 1976] RIGHT TO DEFEND 731 amendments included, by implication, a "right to produce all proofs that may be favorable to him'*? B, The Background of the Fifth and Sixth Amendments It is, of course, common knowledge that the furor in the states over the ratification of the United States Constitution of 1789 centered in great part upon the absence of a federal bill of rights similar to those found in most of the state constitutions of the day.*^^ The bulk of this debate centered on noncriminal rights, such as freedom of press and religion, with scant concern for crim- inal trial rights other than the right to trial by jury.'^ However, the records of the New York ratifying convention indicate that some attention was paid to the issue of criminal de- fendants' rights. The New York convention proposed a number of amendments to the Federal Constitution, including several which specifically guaranted rights now protected in the fourth, fifth, sixth, and eighth amendments.' ' Several other states did "^^See generally 1 & 2 Schwartz, supra note 53, at 439-938. '*One of the few references to criminal trial rights during these public debates is contained in the letters of Brutus, a pseudonymous Massachusetts anti-federalist: For the security of life, in criminal prosecutions, the bills of rights of most of the States have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself—the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a particular State? The powers vested in the new Congress extend in many cases to life; they are authorized to provide for the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that "the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the State where the said crimes shall have been committed." No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New York, or carried from Kentucky to Richmond for trial for an offence supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall he allowed to produce all proof he can in his favor? That he shall see the wit- nesses against him face to face, or that he shall be fully heard in his own defence by himself or counsel? Letters of Brutus, No, II (1788), set forth in 1 Schwartz, supra note 53, at 508 (emphasis in original). Brutus* reference to the defendant's right "to produce all proof he can in his favor" is important, but understandable in light of the fact that he was a citizen of Massachusetts which had guaranteed such a right. '''New York Proposed Amendments to the Constitution of the United States (1788), reprinted in 2 Schwartz, supra note 53, at 911: 732 INDIANA LAW REVIEW [Vol. 9:711 the same, apparently with little debate. Thus, three of the ratify- ing states proposed a right to grand jury indictment;'® three pro- posed guarantees against self-incrimination;^' four proposed some sort of due process clause ;'°° four proposed a speedy public trial provision ;'°' five suggested a guarantee of jury trial ;^°^ and three suggested rights to confrontation, the production and availability of a defendants' witnesses, and counsel.' °^ C. Legislative History of the Fifth and Sixth Amendments Unfortunately, the records of the congressional debates on the Bill of Rights are sketchy, consisting primarily of summaries prepared years after the event. '°^ What is known of the debates That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted. That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeach- ment) a Presentment or Indictment by a Grand Jury ought to be ob- served as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed ; and that no person can be found Guilty without the unani- mous consent of such Jury. But in cases of Crimes not committed within any County of any of the United States, and in Cases of Crimes committed within any County in which a general Insurrection may prevail, or which may be in the possession of a foreign Enemy, the enquiry and trial may be in such County as the Congress shall by Law direct; which County in the two Cases last mentioned should be near as conveniently may be to that County in which the Crime may have been committed. And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Ac- cusation, to be confronted with his accusers and the Witnesses against him, to have the means of producing his Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evi- dence against himself. That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate. Id. at 912-13. '^Maryland, New Hampshire, and New York. 2 Schwartz, supra note 53, table at 1167. '''Pennsylvania, Virginia, and North Carolina. Id. ^°°Pennsylvania, New York, Virginia, and North Carolina. Id. ^'^'Pennsylvania, New York, Virginia, and North Carolina. Id. '^^Pennsylvania, Maryland, New York, Virginia, and North Carolina. Id. ''^'Pennsylvania, Virginia, and North Carolina. Id. '^''The paucity of original data on the early debates of Congress is especially true of the Senate whose sessions were closed to the public until the second session of the Third Congress. 1 Annals of Cong. 15-16 (1789). Most of what we know of the early debates in the House of Representatives as found in the Annals of Congress was compiled jointly from newspaper 1976] RIGHT TO DEFEND 733 suggests that the criminal trial rights now found in the fifth and sixth amendments, with the exception of the guarantee of jury trial, either were not very controversial or their language was not considered very important. Unlike the first, second and ninth amendment guarantees, which were discussed at length in Con- gress, the language of the fifth and sixth amendments received almost no consideration. '°^ Although the ratification conventions of eight states re- quested amendments of various sorts when they ratified the Constitution, there was no groundswell of support for protection of criminal trial guarantees. In fact, most of the criminal trial guar- antees relevant to the present discussion^ °^ were suggested by no more than three states : Pennsylvania, Virginia, and North Caro- lina. '°^ And while the state ratification conventions had generally suggested amendments to the 1789 Constitution, Congress was slow to respond. New York and Virginia, in their frustration over the lack of congressional response, had even begun circulating a call for a new constitutional convention to amend or alter the 1789 Constitution. '°® It was against this background that Madison'°' announced in the House of Representatives on May 4, 1789, that he wished to bring the subject of amendments to the Constitution before that body.^^° The matter was reluctantly taken up by the House on June 8, 1789, at which time Madison delivered his now famous speech' '' proposing nine separate changes in the text of the Con- stitution. The speech dealt generally with the necessity for amend- ments but did not explain the reasons underlying the changes. Madison simply proposed, inter alia, the following changes : That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: * * * No person shall be subject, except in cases of im- peachment, to more than one punishment or one trial accounts and Lloyd's Congressional Record. 2 Schwartz, supra note 53, at 984. ^°^See generally 2 Schwartz, supra note 53, at 983-1167. ^^^E.g., the right to counsel, the right to call witnesses, the right to confrontation, and the right to know the cause and nature of the accusation. '°^2 Schwartz, supra note 53, table at 1167. '^^Id. at 1006. '°'It is also asserted that Madison proposed the Bill of Rights in order to fulfill a campaign promise to seek amendments to the Constitution. This promise was apparently made in order to forestall the effort by his anti- federalist opponent, James Monroe, to label Madison as an anti-amendment candidate. Id. at 984, 996-97. "n Annals of Cong. 247 (1789). '''Id. at 431-44. 734 INDIANA LAW REVIEW [Vol. 9:711 for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments in- flicted. *(• V H* In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favour ; and to have the assistance of counsel for his defence.' ^^ Nowhere in his June 8th speech did Madison discuss either the necessity for or the rationale of these particular guarantees. The House began consideration of Madison's proposals by referring them to a Committee of Eleven, consisting of one mem- ber from each state which had then ratified the Constitution.' '^ Madison represented Virginia on the Committee and apparently continued to serve as a driving force behind the amendments. On August 13, 1789, the House began discussion of the report of the Committee"^ and, by August 17, 1789, had reached the pro- visions which later became the fifth and sixth amendments. The fifth amendment debate centered exclusively on the double jeopardy provisions and thus is of no relevance here.''^ The debate on the sixth amendment provisions is interesting because of its brevity. The only known recorded House debate over what is now the sixth amendment was as follows: The committee then proceeded to consider the seventh proposition, in the words following: Article 3, section 2. Strike out the whole of the third paragraph, and insert, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, ''""Id, at 434-35. ''Ud. at 660-65. '^"•/d. at 703. Madison's draft of the criminal protections was patterned after the Virginia Declaration of Rights and Virginia Recommendation No. 8 from its ratifying convention. The only change made by Madison was to substitute the language "to have compulsory process for obtaining witnesses in his favour" for the language "to call for evidence in his favour." See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 97-98 (1974) [hereinafter cited as Westen]. ^^^See 1 Annals of Cong. 753-54 (1789). 1976] RIGHT TO DEFEND 736 to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." MR. BURKE moved to amend this proposition in such a manner as to leave it in the power of the accused to put off the trial to the next session, provided he made it appear to the court that the evidence of the witnesses, for whom process was granted but not served, was material to his defence. MR. HARTLEY said, that in securing him the right of compulsory process, the Government did all it could; the remainder must lie in the discretion of the court. MR. SMITH, of South Carolina, thought the regula- tion would come properly in, as part of the judicial system. The question on MR. BURKE's motion was taken and lost; ayes 9, noes 41. MR. LIVERMORE moved to alter the clause, so as to secure to the criminal the right of being tried in the State where the offence was committed. MR. STONE observed that full provision was made on the subject in the subsequent clause. On the question, MR, LIVERMORE's motion was adopted. MR. BURKE said he was not so much discouraged by the fate of his former motions, but that he would venture upon another. He therefore proposed to add to the clause, "that no criminal prosecution should be had by way of in- formation." MR. HARTLEY only requested the gentleman to look to the clause, and he would see the impropriety of insert- ing it in this place. A desultory conversation arose, respecting the fore- going motion, and after some time, MR. BURKE with- drew it for the present. The committee then rose and reported progress, after which the House adjourned.^ ^* Obviously, the sixth amendment guarantees were neither con- troversial nor the subject of laborious drafting or technical amend- ments. In view of the variation in state constitutional formulations in this area,'''' it is remarkable that there was so little debate. Madison, a Virginian, had drafted the sixth amendment guar- antees following the pattern set in the Virginia Declaration of Rights. His only major departure was the substitution of the i^n Annals of Cong. 755-56 (1789). ^^^See notes 98-103 supra and accompanying text. 736 INDIANA LAW REVIEW [Vol. 9:711 right *'to have compulsory process for obtaining witnesses in his favour*' for Virginia's language guaranteeing the right "to call for evidence in his favour." No one suggested that the Mas- sachusetts protection of the "right to produce all proofs, that may be favorable to [the accused]" ought to be added. No one urged either the New Jersey language, which guaranteed equality between prosecution and defense in regards to witnesses and counsel, or the Virginia formulation. This lack of debate might reflect either of two possible legislative intentions. It might in- dicate that Congress deliberately sought to exclude both the Mas- sachusetts guarantee of the right to present a defense and the New Jersey equality principle. Alternatively, it might indicate that the Framers considered fifth and sixth amendments to be com- parable to the Virginia, Massachusetts, and New Jersey formula- tions of criminal trial guarantees and to provide fundamentally the same protections.^^® While the record is not free from ambiguity, the view that the House believed that the language of the fifth and sixth amend- ments provided the same protections as the Massachusetts and New Jersey provisions seems to be most in keeping with the histor- ical circumstances in which those amendments were adopted. Madison, the drafter of the amendments, had naturally turned to his own state's Declaration of Rights as a form for the bulk of his handiwork. Since five other states had followed Virginia's formulation, it numerically represented the most widely used formulation among the constitutions of the new states. Yet, Mas- sachusetts, New Hampshire, and New Jersey all had varying guar- antees, and all were presented in the First Congress which con- sidered the Bill of Rights.^'' Given the economic and state rivalries that had developed between the northeastern states, especially Massachusetts, and the southern states, especially Virginia,^ ^° it seems remarkable that none of the representatives from these three northeastern states objected to incorporating into the Fed- eral Constitution a formulation of rights based substantially on the Virginia Declaration of Rights unless it was assumed that the Virginia formulation and the language adopted in the fifth and sixth amendments had a meaning substantially similar to that of the Massachusetts, New Hampshire, and New Jersey pro- visions. ^'®This explanation would also serve to explain Madison^s drafting changes. See note 114 supra. '"2 Schwartz, supra note 53, at 1050. '2°1 G. Curtis, Constitutional History op the United States 504-14 (1st ed. 1897); 1 W. Crosskey, Politics and the Constitution in the History of the United States 194, 315-16 (1953) ; C. Warren, The Making OF the Constitution 570-75 (2d ed. 1937). 1976] RIGHT TO DEFEND 1^1 The House of Representatives finally voted on and approved the proposed amendments on August 24, 1789. At that point in time, the sixth amendment guarantees read as set forth above. '^' The fifth amendment guarantees then read: The trial of all crimes [except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger] shall be by an impartial jury of the vicinage, with the requisites of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment by a grand jury; but if a crime be committed in a place in possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be au- thorized in some other place within the same state. ^122 The Senate's review of the amendments commenced on August 25, 1789.'" Like the House, the Senate seemed relatively uncon- cerned about the amendments, and there is a disappointing lack of information about its debates. The sixth amendment guarantees were adopted without change by the Senate on September 7, 1789, apparently with little or no debate. '^^ However, the Senate rejected at that time the House formulation of the fifth amendment pro- tections.'^^ The fifth amendment guarantees were redrafted by the Senate in response to its September 7th debates. The Senate finally drafted and agreed to the formulation now found in that amendment.'^* However, by an evenly divided vote, on the same day, the Senate refused to concur in the House guarantee of a ^^^See text accompanying note 120 supra. - '22X Annals of Cong. (1789). '2=2 Schwartz, supra note 53, at 1145. '^^Id, at 1150-57; 1 Annals of Cong. 75-76 (1789). '2^2 Schwartz, supra note 53, at 1150-57. Interestingly, twenty other unsuccessful amendment proposals were also considered at this juncture in the amendment process, and none dealt with the trial rights of criminal defendants. Id. at 1151-53; 1 Annals of Cong. 76 (1789). 126 No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject to be put in jeopardy of life or limb, for the same offence; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. 2 Schwartz, supra note 53, at 1154. 738 INDIANA LAW REVIEW [Vol. 9:711 right to trial by jury and its ancillary protections. The Senate took its final vote on September 9, 1789,'^^ and continued to ad- here to its original position, approving the sixth amendment guar- antees as drafted in the House, and redrafted the fifth amendment guarantees by deleting the right to jury trial. The lack of debate preceding the Senate's acceptance of the sixth amendment might further support the thesis that the First Congress as- sumed that the House formulation of the sixth amendment in- cluded all rights protected in the Virginia, Massachusetts, New Hampshire and New Jersey bill of rights provisions.^'® After the Senate changes were reviewed by the House, the entire matter of the amendments to the Constitution was sub- mitted to conference committee.'^' Once again Madison played a key role, serving as one of the House conferees and reporting the Conference Report to the House. The only important aspect of the Conference Report for the purposes of this Article is the fact that the report reincluded the right to trial '*by an impartial jury of the State and district wherein the crime shall have been com.mitted,'' a.ppending this right to the sixth amendment formula- tion rather than the fifth amendment as originally adopted in the House. '^° The Conference Report was passed by both Houses and twelve initial amendments to the Constitution, including the fifth and sixth amendments, were submitted to the states for ratification.'^' Unfortunately, the available information on the ratification debates in the state legislatures sheds no light what- soever on the issue of whether ratifying states intended the fifth and sixth amendments to incorporate a general right to present a defense. Thus, the historical background of the Bill of Rights leaves unclear the intent of the Framers of the fifth and sixth amend- ments. However, one possible inference from the history of the Bill of Rights suggests that Madison and the other members of the First Congress who framed and submitted the fifth and sixth amendments intended thereby to remove all obstacles then extant to the ability of the accused to fully and fairly defend him- self against criminal accusations. Thus, the history of the Bill of Rights lends some support to the view that the spirit or '^Ud. at 1157; 1 Annals of Cong. 77 (1789). ^^^Interestingly, Caleb Strong, one of the chief drafters of the Massa- chusetts Declaration of Rights, was a member of the Senate, but he was in- explicably absent from the vote on the sixth amendment. His absence may show his lack of concern over the change in language. 1 Annals OF CONG. 15 (1789); cf. 2 Schwartz, supra note 53, at 1154. '292 Schwartz, aupra note 53, at 1159. '3°/d at 1162. '''Id. at 1162-66. 1976] RIGHT TO DEFEND 739 penumbras^ ^^ of the fifth and sixth amendment rights and the due process clause of the fifth amendment generally protect the criminal defendant's ability to present his defense, above and beyond the express guarantees. III. Developments After the Bill of Rights : The Creation OF New Obstacles in the Defendant's Path During the nearly two centuries of legal development follov/- ing the adoption of the Bill of Rights, there were many major de- partures from the criminal trial process known to the Framers of the Bill of Rights. Many of these departures had the impact of creating new obstacles to the presentation of the defense case which were never envisioned by the drafters of the fifth and sixth amendments. Obviously, any comprehensive survey of these developments is beyond the scope of the present enterprise. Hov/- ever, the major trend of the nineteenth and twentieth centuries can be summarized as having the effect of codifying and solidifing concepts of evidence and criminal procedure. This trend appears to reflect the grov^h of the codification process which took root and flourished in all areas of American law during the nineteenth century and resulted in such renowned products as the Field Code.'" Many of the newly developed criminal procedures and evidentiary rules operated to exclude evidence deemed central to the defense ; however, only recently has the Supreme Court begun to address some of the ramifications of these developments. ^^^ A comparison of the late eighteenth century criminal trial with its modern counterpart shows the marked evolution of crim- inal procedures during the last one hundred and eighty years. As noted above,' ^^ the criminal trial of the late eighteenth century had few formalized rules of evidence, other than general notions of relevancy and testimonial competence, and even fewer formalized rules of procedure. Compared to the highly structured modern criminal trials, these early trials were rather formless, loose affairs.'^* '^""Cf, Griswold v. Connecticut, 381 U.S. 479 (1965). ^^^See generally Morris, Some Historical Origins of Statutory Law and Judicial Decisions in North Dakota, in Essays in History in Honor of Felix Frankfurter 101 (Forkosch ed. 1966). ' ^'^See cases cited note 4 supra. ^^^See notes 68-83 supra and accompanying text. ^^*Although most state constitutions guaranteed the right to counsel, many defendants appeared pro se. Even when rules of evidence were appli- cable, they did not in fact significantly hamper the defendant's presentation of his defense since he was permitted to address the jury personally in an unsworn capacity and thereby present whatever material he desired in his own behalf unhampered by formal rules of evidence. Levy, supra note 44, at 322-23. 740 INDIANA LAW REVIEW [Vol. 9:711 During the nineteenth century, several major changes oc- curred. Counsel began to appear more frequently on behalf of criminal defendants,''^ and the defendant's disqualification from giving sworn testimony gradually disappeared. The latter de- velopment began by statutory change in Maine in 1864' '® and slowly crept throughout the nation so that by the mid-twentieth century, all states except Georgia permitted the accused to testify in his own behalf. ''" The Georgia testimonial disqualification rule was not remedied until the Supreme Court's decision in Ferguson V. Georgia'^° in 1961. The reluctance to change the rule disqualify- ing the defendant seems to have been based both on fears of pos- sible self-incrimination and on an assumed lack of weight of the accused's testimony resulting from his obvious interest.'"^' The removal of the testimonial disqualification of the accused was accompanied by new procedural rules, including the requirement that the accused testify first if at all,'^^ and the disqualification of accomplices from testifying on behalf of the defendant,'''^ which proved to be detrimental to the defense. '^^ ^^ ^Special Committee of the Association of the Bar op the City OF New York & the National Legal Aid and Defender Association, Equal Justice for the Accused 41 (1959). '^^Me. Pub. L. of 1864, ch. 280 (codified at Me. Rev. Stat. Ann. tit. 15, §1315 (1965)). This development was, according to Wigmore, followed by- Massachusetts in 1866, by Connecticut in 1867, by New York and New Hamp- shire in 1869, and by New Jersey in 1871. 2 Wigmore, supra note 23, § 579, at 701 n.2. Michigan may have attempted an even earlier modification of the disqualification rule in 1861 only to see it interpreted in a fashion which rendered it inapplicable in a criminal case. See People v. Thomas, 9 Mich. 314 (1861). In England the change of the rule disqualifying the defendant from giving sworn testimony took even more time. Although Bentham criticized the rule as early as 1827, the legislative attack on the rule did not begin in England until 1872 and did not come to full fruition until 1898. 2 Wigmore, supra note 23, § 579, at 701 n.3. As late as 1930 in the British Indian trials, the accused was still deemed disqualified from testifying. C. Walsh, Crime in India 51 (1930), relied upon in 2 Wigmore, supra note 23, § 579, at 701 n.3. '^'2 Wigmore, supra note 23, §579. ^^°365 U.S. 570 (1961). '""'See, e.g., People v. Tyler, 36 Cal. 522, 528 (1869) ; State v. Cameron, 40 Vt. 555, 565 (1868). See generally H. Stephen, Prisoners on Oath, Present and Future (1898) ; Testimony of Persons Accused of Crime, 1 Am, L. Rev. 443, 446 (1867). ^'^^See, e.g., Tenn. Code Ann. §40-2403 (1975) (declared unconstitu- tional in Brooks v. Tennessee, 406 U.S. 605, 612 (1972)). ^""^See, e.g., Tex. Penal Code of 1925, art. 82 (repealed 1973) ; Tex. Code Crim. Pro., art. 711 (1925) (repealed 1965). But see Washington v. Texas, 388 U.S. 14, 19-21 (1967). '^''The United States Supreme Court has also been forced to confront the ramifications of these limitations on the accused's ability to defend him- self. See Brooks v. Tennessee, 406 U.S. 605 (1972), and Washington v. Texas, 388 U.S. 14 (1967), discussed infra at text accompanying notes 268-97 & 315-38. 1976] RIGHT TO DEFEND 741 Simultaneously with the growth of the defendant's right to testify, his right to freely address the jury unfettered by rules of evidence atrophied. The courts commonly held that the statutes al- lowing the defendant to testify under oath implicitly abolished the common law right of the defendant to make an unsworn statement free from cross-examination. '"^^ As the Louisiana Supreme Court stated, "[T]he rule ceases when the reason on which it is founded ceases" '^^ While one might question the Louisiana court's con- clusion that the reason for the rule ceased with the change in prac- tice allowing the accused to give sworn testimony, '^^ most states rapidly followed this line of analysis. '^^ Thus, the nineteenth and twentieth century trends toward increasing jurisprudential rigidity and formalization of rules of evidence and procedure created new problems for the accused. Whereas criminal defendants might previously have had the oppor- tunity to make complete and unfettered statements, they now found themselves thrust onto the witness stand and portions of their testi- mony occasionally excluded by evidentiary rulings."^' State courts' ^° and federal courts'^' adopted various procedural rules which sanc- tion noncompliance by excluding evidence offered on behalf of the accused. These evidentiary and procedural rules and other outgrowths of the legal formalization since 1789 now stand as the primary hurdles to the accused in presenting a defense. The '^^See, e.g., O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543 (1932) ; State V. Louviere, 169 La. 109, 124 So. 188 (1929). Indeed, some common law jurisdictions appear to continue to allow the accused to elect whether to take the stand and give sworn testimony subject to cross-examination or to give an unsworn statement to the jury. While it is generally assumed that the latter "testimony" is given a lesser weight, the election remains. ^^*State V. Louviere, 169 La. 109, 124 So. 188, 192 (1929). Cf. People v. Thomas, 9 Mich. 314 (1861). '"^^The accused's right to make an unsworn statement may have also served the purpose of permitting the accused to fully present his defense, explanation, or mitigating factors without being ensnarled by technical rules of evidence. Furthermore, precluding cross-examination of the accused who made a statement protected his privilege against self-incrimination while allowing him to participate in his own defense. Obviously, the simple grant of testimonial competency to the accused performs neither of these functions. '^^When Angela Davis secured permission in her recent and highly publicized trial to serve as her own counsel and was thereby permitted to make opening and closing statements without taking the stand as a witness subject to cross-examination, this practice was regarded by many as a radical new departure in criminal procedure. In fact, the practice had strong roots in the now little-known common law right of the accused to represent himself and make an unsworn statement to the jury. '^''See, e.g., United States v. Borkenhagen, 468 F.2d 43, 50 (7th Cir. 1972). ^^^Fla. R. Crim. p. 3.200 (1975); Ore. Rev. Stat. §135.865 (1975). '''See Fed. R. Grim. P. 12.1. 742 INDIANA LAW REVIEW [Vol. 9:711 reaction of the United States Supreme Court to these developments has not been wholly consistent. It is only recently that the Court has directly confronted the constitutional ramifications of some of these post-Bill of Rights developments. IV. The Supreme Court and the Emergent Right To Present A Defense Cases involving exclusion of portions of the defense case in criminal matters were slow to reach the United States Supreme Court. Indeed, it was not until 1851^" that the Court even ruled comprehensively on the rules of evidence to be used in federal criminal cases. Thus, it is not surprising that most of the early cases challenging exclusion of defense evidence did not raise con- stitutional challenges but were argued and resolved pursuant to nonconstitutional rules of procedural or evidentiary law and were predicated on the Supreme Court's supervisory power over the inferior federal courts. ^^^ This trend seemingly reflected the em- phasis placed on evidentiary and procedural formalization, noted previously in this Article. '^^ It was not until the 1960's, when federal constitutional protections were rapidly extended to state criminal procedural matters, that the constitutional implications of hindering the presentation of the accused's defense surfaced in Supreme Court decisions. However, certain constitutional de- velopments even before the 1960's provided the groundwork for these later cases. This section will discuss the pre-1960 develop- ments and scrutinize the Supreme Court's historic attitudes tov/ard cases challenging the exclusion of portions of the defense case. A, Early Decisions: The Evidentiary Foctis Apparently the first case to reach the Supreme Court challeng- ing exclusion of portions of the accused's case'" was United States V. Reid,'^'' decided in 1851. The issue posed in that murder appeal, tried in the Virginia federal court pursuant to admiralty jurisdic- tion, was the propriety of the exclusion of the testimony of an accomplice offered on behalf of the accused. The Virginia legisla- ture had adopted a statute which rendered the testimony of an accomplice competent evidence if the accomplice was tried sep- arately. The defendant, relying on this statute, argued that Sec- ^"United States v, Reid, 53 U.S. (12 How.) 361 (1851). '"5ee, e.g., Rosen v. United States, 245 U.S. 467 (1918). '^'^See notes 133-43 supra and accompanying text. '-'Cf. Windsor v. McVeigh, 93 U.S. 274 (1876); McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1870) (denials of opportunity to defend found to be error). '"53 U.S. (12 How.) 361 (1851). 1976] RIGHT TO DEFEND 743 tion 38 of the Judiciary Act of 1789,'^^ which had adopted the laws of the state as the rules for decision in the federal court, rendered the exclusion of the testimony erroneous. Chief Justice Taney's opinion for the Court in Reid rejected the defendant's argument and construed the 1789 Act to refer only to civil trials *'at common law." Thus, the Court held that ''the rules of evidence in criminal cases, are the rules which were in force in the respective states when the Judiciary Act of 1789 was passed." '^° Chief Justice Taney briefly outlined the history of criminal trial procedure, including the denials of compulsory process, confrontation, and the right to counsel on all but legal matters. He concluded that the state and federal governments had sought to eliminate this "oppressive mode of proceeding"'" by various statutes and ultimately by their bill of rights guarantees. He further stated that the fifth and sixth amendment guarantees were designed to provide "the same mode of trial, and the same mode of proceeding, that had been previously established and practised in the courts of the several states."' *° Since the right to call an accomplice to testify had not been provided in the state courts and was not enumerated in the Bills of Rights, Taney held it was not available in federal criminal trials. Reid did not, however, survive very long into the twentieth century. As the Court noted in Washington v. Texo^,^^^ when it returned to the same issue in a sixth amendment challenge, Reid was expressly overruled in 1918 by Rosen v. United States.'^^ Although Rosen dealt with the testimony of an accomplice which was offered by the government, the rationale of the Court's opin- ion appears to be as important to the defendant as the prosecution : [T]ruth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent ....''!63 Thus when Rosen was decided in 1918, the Court had seemingly adopted a preference for admissibility of evidence, leaving the trier of fact to determine its weight. ^^^28 U.S.C. §1652 (1970). '^»53 U.S. at 361. ''''Id. at 364. ^^^388 U.S. 14, 21-22 (1967). See notes 266-91 infra and accompanying text. ^*2245 U.S. 467 (1918). '"/d. at 471. 744 INDIANA LAW REVIEW [Vol. 9:711 Even though it has been overruled by Rosen, the Reid case is important because of the theoretical framework in which the Court discussed the exclusion of evidence offered on behalf of the defendant. While touching on the fifth and sixth amendments in dicta, Chief Justice Taney's opinion in Reid did not treat the problem of exclusion of defense evidence as an issue of constitu- tional magnitude. Instead, his analysis rested simply on issues of statutory interpretation and the Supreme Court's authority to supervise the mode of trial in the inferior federal courts. This approach to cases involving exclusion of defense evidence con- tinued until the 1960's, when cases arising from the state courts began to raise similar problems in a constitutional context. So long as the criminal cases with which the Court dealt arose from the federal courts, it was a relatively simple matter to avoid the constitutional implications of the exclusion of portions of the accused's defense. During the period between 1895 and 1920, the Supreme Court decided a number of cases in which one of the assigned errors was the exclusion of a portion of the defendant's case. While precedent existed for deciding these cases on constitutional grounds, ^*^ the Court relied almost exclusively on evidentiary rules and gave little attention to the fairness of the application of such rules in the particular context of the case or to the effect that such rules had on the defendant's ability to offer a defense. In Mattox V. United States,^ ^^ the Supreme Court upheld the exclusion of the testimony of two defense witnesses in a murder trial. The prof- fered testimony involved certain prior inconsistent statements of a prosecution witness and certain other statements which tended to exonerate the accused. The prosecution witness had since died and his prior recorded testimony had been introduced against the accused. Deciding the case on strictly evidentiary grounds, with little reference to the criminal nature of the proceedings, the Court reasoned that since the proper foundation for the prior inconsistent statement could not be laid because of the death of the witness, the evidence was inadmissible. Three Justices dis- sented, protesting that the result of the decision was "to sacrifice substance of proof to orderliness of procedure, and the rights of the living party to consideration for the deceased witness."^'* Similarly, in Andersen v. United States,'''^ the Court in an ad- miralty murder case upheld on relevancy grounds the exclusion '*^5:ee, e.g„ Hovey v, Elliott, 167 U.S. 409 (1897); Windsor v. McVeigh, 93 U.S. 274 (1876) ; McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1870). See notes 178-84 infra and accompanying text. '"156 U.S. 237 (1895). '**M at 260 (Shiras, J., dissenting). '^7170 U.S. 481 (1898). 1976] RIGHT TO DEFEND 745 of the defendant's proffered testimony regarding a prior alterca- tion with the murder victim. Again the case was decided on strictly evidentiary grounds, with little attention to its impact on the ability of the defendant to present his theory of defense. Donnelly v. United States^ ^^ also presented similar issues. Donnelly was charged with the murder of an Indian in Indian country and sought to introduce in his own behalf a confession to the crime by a person since deceased. The confession was partially corroborated by extrinsic circumstantial evidence indicating the likelihood of the deceased confessor's presence at the scene of the crime. Despite these indicia of reliability and the centrality of the confession to the accused's defense, the Court rejected the claim. The opinion for the majority in Donnelly treated the issue merely as a classic hearsay problem, finding declarations against penal interest to be outside any traditional hearsay rule exception. The majority opinion contained no reference to any constitutional prob- lem^*' nor any discussion of the fairness of excluding this portion of the accused's defense. Three Justices dissented. Led by Justice Holmes, they protested not only the evidentiary rule involved but also the fairness of its application in the context of that criminal case : [N]o other statement is so much against interest as a confession of murder, it is far more calculated to con- vince than dying declarations, which would be let in to hang a man . . . and when we surround the accused with so many safeguards ... I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight.^170 After the turn of the century, the Court also decided several cases upholding the traditional competency rule excluding the testimony of the accused's spouse when offered on his behalf.'^' As in the foregoing cases, the Court considered and decided the issue strictly by application of evidentiary law, with no con- sideration of either constitutional concerns or issues of fariness to the defendant. Even when the Court reversed convictions on the basis of im- proper exclusion of portions of the accused's evidence, fundamental fairness questions were rarely considered. Procedural and evi- dentiary rules were the gravamen of the decisions. Thus, in ^*«228 U.S. 243 (1913). ^^'C/. Chambers v. Mississippi, 410 U.S. 284 (1973). ^7^228 U.S. at 278 (Holmes, J., dissenting, joined by Hughes & Lurton, JJ.). '7'Jin Fuey Moy v. United States, 254 U.S. 189, 195 (1920); Hendrix v. United States, 219 U.S. 79, 91 (1911). 74(5 INDIANA LAW REVIEW [Vol. 9:711 Carver v. United States,''' the Court reversed a murder convic- tion because two important portions of the defense case had been excluded at trial. The Court held it improper to exclude the testimony of witnesses offered by the defendant to prove the con- tents of conversations occurring between the decedent and the accused immediately after the accused had shot the decedent. Finding that these conversations were part of the res gestae, the Court could find no evidentiary basis for their exclusion, par- ticularly since the prosecution had been allowed to present por- tions of these conversations under a dying declaration theory. The Court therefore held that it was equally competent for the accused to present his witnesses' versions of the conversations. The issue was resolved strictly as a matter of evidentiary law. The closest the Court came to discussing any notion of fairness w^as the statement that, "If it were competent for one party to prove this conversation, it was equally competent for the other party to prove their [sic] version of it."'^^ The Court in Carver also held that the defendant had been improperly prevented from introducing evidence that the decedent had made statements in- consistent with her dying declarations which were introduced by the prosecution. These statements tended to show that the de- fendant had not shot the decedent intentionally. Again the de- cision was predicated almost exclusively on evidentiary considera- tions, with no constitutional analysis undertaken. Probably the strongest early statement by the Court regard- ing the exclusion of portions of the defense's evidence came in Crawford v. United States.^'^^ Crawford was charged with a con- spiracy to defraud the federal government. At trial the prosecu- tion was permitted to introduce a letter written by one of the prose- cution witnesses charging the accused with removing and erasing potential evidence. To counter this evidence, the defendant sought to introduce his attorney's reply to the letter and to provide his own explanation in his own testimony. This evidence was ex- cluded by the trial court. The defendant also sought to introduce a ledger in which he kept relevant accounts in order to prove the legitimacy of his business transactions. The Supreme Court re- versed Crawford's conviction, holding that the exclusion of such items of evidence was erroneous. ^^^ The most important state- ^^^164 U.S. 694 (18977! ''Ud. at 696-97. ^^^212 U.S. 183 (1909). '^^The Court reasoned that Crawford's attorney's letter should have been admitted as an explanation of the facts surrounding the accusation contained in the letter which was admitted into evidence. The letter offered by the prosecution was of doubtful admissibility in any event, unless accom- panied by the explanation. Id. at 199. The Court viewed similarly Crawford's efforts to explain his intention in drafting the letters. Id. at 202. However, 1976] RIGHT TO DEFEND 747 ment in the opinion was that a presumption of error would arise from the exclusion of material defense evidence.''^ Additionally, the entire tone of the Court's opinion reflected a concern with assuring a fair trial for the accused. '^^ However, this case also was ultimately decided on matters of evidentiary law without refer- ence to the Constitution. Thus, the earliest criminal cases in the United States Su- preme Court which challenged the exclusion of portions of the defense case were decided on strictly evidentiary grounds. Con- siderations of constitutional law or fairness appear to have been generally ignored in the opinions. The reasons for this phenomenon, while not evident in the cases, are not difficult to imagine. Most of these early cases occurred in the late nineteenth and early twentieth centuries, with the vast majority decided between 1895 and 1920. During most of this period, almost all of the criminal cases reaching the Supreme Court arrived there by way of appeal on writ of error from lower federal courts. Since the Court has appellate and supervisory power over the law and procedures of the inferior federal courts, there was seldom any need to reach questions of constitutional magnitude. Indeed, it was only after the fourteenth amendment revolution of the 1960's that any ex- tensive process of applying federal constitutional law to state criminal trials began. Accordingly, the Court was seldom faced with constitutional challenges to state criminal decisions. Even more important is the fact that the jurisprudence of this era w^as focused on a great formalization of evidentiary and procedural rules. Thus, it is not surprising that cases were argued and decided solely on the basis of evidentiary and procedural law, without any reference to constitutional problems. B. The Court's Early Constitutional Frametvork: Due Process and the Right To Be Heard The Supreme Court decisions before 1960 are not wholly without importance for the post-1960 cases which began to build the Court did not find exclusion of the explanation prejudicial. Id. at 205. In addition to the discussion of the exclusion of evidence surrounding Crawford's letters, the Court also held that the trial judge could not presume the irregu- larity of Crawford's ledgers and thereby exclude them. The ledger was offered as an ordinary account, or business record, and the defendant testified that it had not been altered or forged. The Court thus concluded that the ledger was admissible and its value was for the jury. Id. at 207-08. ''*/d. at 203. However, the Court admitted that the presumption could be rebutted by showing clearly from the record an absence of harm to the defendant. Id. Thus, Crawford arguably represents one of the foundations of the harmless error rule now incorporated in rule 52(a) of the Federal Rules of Criminal Procedure. ^'^^See, e.g., 212 U.S. at 203: "The defendant was peculiarly situated in this case, and great care was necessary to prevent injustice to him." 748 INDIANA LAW REVIEW [Vol. 9:711 the right to present a defense. During this earlier period, the Court began to construct the constitutional framework of the due process right to be heard relied upon by some of the post-1960 cases. The due process right to be heard cases began with McVeigh V. United States, ^^^ sl civil case which arose from an effort made during the Civil War to forfeit part of McVeigh's real and per- sonal property and a resulting libel proceeding. When McVeigh appeared by counsel, the attorney for the United States moved successfully to strike McVeigh's appearance, answer and claim on the ground that McVeigh was an enemy alien then living within the Confederacy. An order of forfeiture was entered which the Supreme Court reversed, finding that the refusal to permit Mc- Veigh to defend his property was a gross error, apparently of con- stitutional magnitude. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there, he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and the right administration of justice.'^' Thus, the Supreme Court was rather forceful in its early as- sertion that the right to be heard in defense of one's rights is fundamental. The principle that the defendant must be given his day in court was rapidly reaffirmed in Windsor v, McVeigh^ ^° which involved an identical factual pattern. In that case the Court reaffirmed its earlier decision and said: Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are in- separable. This is a principle of natural justice, re- cognized as such by the common intelligence and con- science of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.^*' '='^78 U.S. (11 Wall.) 259 (1870). ''""Id. at 267. ^«°93 U.S. 274 (1876). 'fii/d. at 277. See also Galpin v. Page, 85 U.S. (18 Wall.) 350 (1873), in which the Court stated: "It is a rule as old as the law . . . that no one shall be personally bound until he has had his day in court, by which is meant, 1976] RIGHT TO DEFEND 749 The Supreme Court relied on the two McVeigh cases in Hovey V. Elliottf^^^ where the Court clearly held that "due process of law signifies a right to be heard in one's defence/"®^ Hovey involved the issue of whether a District of Columbia court could strike a party's answer and confess judgment against him for his alleged contempt in failing to pay into court sums of money held by him and for refusing to appear when summoned to do so. The Court held that such a procedure denied the litigant due process of law. The Court conducted an extensive review of common law principles and English precedents'®^ in reaching its conclusion that the opportunity to be heard was a fundamental constitutional right of all citizens. The due process right to be heard thereafter de- veloped rapidly in civil cases and was readily accepted.'" However, before the 1960's few applications of due process principles can be found in criminal cases. Certainly before the 1960's the concept of the right to be heard rarely was connected with a right to present particular items of evidence or to present them in a particular fashion. Although the Court had the op- portunity to merge these concepts in two appeals entitled McGinis V. California,^ ^^ the Court's opinions in those cases are wholly un- enlightening. The cases involved the efforts of an accused to defend himself against state charges of possession of cocaine and heroin by proving that the drugs were part of a shipment destined for Mexico pursuant to United States Treasury Depart- ment regulations. The trial judge, apparently convinced that the crime of possession was proven when possession was shovni, re- gardless of the intent or purpose of the possessor, excluded the proffered evidence as immaterial. After the California appellate courts affirmed, the United States Supreme Court heard the case and held that "the rulings were error."'®' Unfortunately, the Court failed to discuss the constitutional issues involved. While noting that the defendant asserted rights under the commerce clause of the Constitution and that a supremacy issue might be involved,'*® the Court simply found the excluded evidence to be relevant and competent and therefore held that it should have been considered. No cases or constitutional authority were cited. until he has been duly cited to appear, and has been afforded an opportunity to be heard" Id. at 368-69 (emphasis added). '«n67 U.S. 409 (1897). '^Ud. at 417. '^'Id. at 415-17. '^^See, e.g.y Anniston Mfg. Co. v. Davis, 301 U.S. 337, 356 (1937) ; White V. Johnson, 282 U.S. 367, 374 (1931) ; Chicago Junction Case, 264 U.S. 258, 265 (1924) ; Bradley v. City of Richmond, 227 U.S. 477, 483 (1913). '«6247 U.S. 91, 95 (1918). '^Ud. at 96. 's^/d. at 94. 750 INDIANA LAW REVIEW [Vol. 9:711 Thus, it is unclear whether the McGinis decision rested essentially on substantive grounds of federal supremacy and the commerce clause rights or on a procedural due process rationale. Obviously, since the Supreme Court vv^as reviev^ing a state conviction, the Court must have assumed that some type of federal constitutional issue was involved. Unfortunately, the precise nature of the error the Court found remains an unresolved enigma. The constitutional momentum behind the right to present a defense accelerated in a line of criminal contempt cases decided by the Court during the first half of the twentieth century. In Cooke V. United States,^^'' the Court addressed the problem of summary contempt procedures invoked for conduct occurring out- side the presence of the court. ^^° In Cooke, the accused, an at- torney, had written a letter to a federal judge who had just ren- dered a substantial judgment against the accused's client. The letter indicated the accused's desire to see the judge recuse him- self in several related cases which were yet to be heard. The judge found the letter contemptuous and ordered Cooke arrested. Cooke was brought before the court and, after admitting that he had prepared and sent the letter, was prevented from making any state- ments concerning his justification or excuse. He was also specifi- cally prevented from proving that the statements contained in his letter were true. In short, Cooke was summarily tried and convicted of contempt without the opportunity to present any defense. Although the Supreme Court found Cooke's letter con- temptuous, the Court unanimously reversed Cooke's contempt citation on the ground that he was prevented from presenting his defense. Wliile recognizing that federal courts have the power to summarily punish contempts occurring in their presence, Chief Justice Taft's opinion stressed that fifth amendment imperatives generally require the opportunity to defend in federal courts. Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, re- quires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation in extenuation of the offense and in mitigation of the penalty to be imposed. ^'^ Thus, the Court imported into criminal contempt cases the con- cepts previously developed in private civil law cases^'^ and recog- '«9267 U.S. 517 (1925). ''°5ee also Savin, Petitioner, 131 U.S. 267 (1889). '9^267 U.S. at 537. "^See notes 178-81 sujyra and accompanying text. 1976] RIGHT TO DEFEND 751 nized that criminal defendants have a constitutionally protected due process right to be heard in reply to the criminal charges lodged against them. While this proposition is by no mean start- ling, it is remarkable that it was not until 1925 that it even re- ceived partial recognition. The rationale of Cooke was continued in In re Oliver''^^' in which the Supreme Court, utilizing the fourteenth amendment, extended the Cooke analysis to state criminal contempt proceed- ings. In Oliver, the summary contempt citation had been issued against a witness whom the judge claimed had falsely testified before a Michigan circuit judge acting as a special investigatory body. After the witness had apparently answered all questions posed by the judge who was serving as the "one man grand jury," the judge summarily charged, convicted and sentenced him for contempt, stating that his testimony did not "jell."''"^ In striking down the application of this summary procedure, the Court con- cluded that it violated due process of law since, according to Cooke, a reasonable opportunity to defend was a central element of due process of law.^'^ Thus, Cooke and Oliver clearly established the principle that the criminally accused have a right to present a defense protected by the due process clauses of the fifth and fourteenth amendments. Yet, until the flood of state criminal cases reached the Court in the 1960's, little development or elaboration of the right to present a defense occurred. The reason for the lack of development before 1960 is somewhat understandable. Cases such as Cooke and Oliver, in which no defense whatsoever is permitted, depict most graph- ically the spectre of a powerless defendant pitted against the all- powerful mechanisms of the state; and that spectre naturally evoked the judicial reactions the Framers of the Constitution probably would have expected. Except in contem.pt cases and possibly traffic cases or court martials, summary convictions are almost unknown in twentieth century American criminal jurispru- dence. Thus, very few cases will raise the issue of the right to present a defense in the clear context presented in Cooke or Oliver. "^^ However, a more common problem in the Am.erican system of criminal justice is the determination of the right to present a defense in situations in which the defense case is only ^'^333 U.S. 257 (1948). I'Vd. at 259. ''''Id. at 274-76. ^'^The Court did, however, apply the rationale of In re Oliver to hold in Cole V. Arkansas, 333 U.S. 196 (1948), that a criminal defendant could not, con- sistently with the fourteenth amendment, be convicted of a crime for which he was not charged in the indictment, because such a conviction partially denied him a "chance to be heard." Id. at 201. 762 INDIANA LAW REVIEW [Vol. 9:711 partially excluded by procedural or evidentiary rules, and the United States Supreme Court only once significantly addressed constitutional challenges to that problem prior to 1960. Unfortunately, the Supreme Court's first opportunity after Cooke to discuss the constitutional ramifications of the right to present a defense in the context of partial exclusion of the defense case came in Yakus v. United States.^''^ Yakus involved a criminal prosecution arising out of price regulations imposed during World War II and was one of the Court's decisions upholding the Emer- gency Price Control Act of 1942 as a permissible wartime measure to prevent inflation and marshal national resources.^'® One of the issues raised in Yakus, however, had direct relevancy to the right to present a defense. The issue arose from the fact that the Emer- gency Price Control Act provided an exclusive administrative and judicial procedure for determining the validity of the price regula- tions. The procedure required that challenges to regulations be heard only on protests filed within two months from the date the regulation was promulgated and that the challenges were to be heard solely by the Administrator of the Act and reviewed only by injunctive or declaratory action in a special Emergency Court of Appeals. ''' Both the Administrator and the court sat in Wash- ington, D.C. The defendants in Yakus were indicted for violation of a regulation establishing maximum wholesale prices of beef. Although the defendants had not sought to challenge the prices through the administrative process and the time for filing pro- tests to the validity of the regulations had expired by the time of the trial, the defendants sought, as part of their defense, to chal- lenge the validity of the price regulations on both due process grounds and on the basis that they did not conform to the re- quirements of the Act. Because of the exclusive statutory commit- ment of these issues to the Administrator and the Emergency Court of Appeals, the district court excluded the proffered de- fense evidence as irrelevant. On appeal, the Supreme Court first construed the Emergency Price Control Act to preclude the ac- cused from challenging the validity of a price regulation in a prosecution for violation of the Act.^°° The Court was then squarely confronted with the issue of whether such a statutory scheme contravened either fifth amendment due process requirements, the sixth amendment guarantees, or the separation of powers. In an opinion authored by Chief Justice Stone, the ma- jority in Yakus found, over the dissents of three justices, that the statutory scheme neither contravened the constitutional guar- '9^321 U.S. 414 (1944). I'^See al80 Bowles v. Willingham, 321 U.S. 503 (1944). ^''321 U.S. at 428-31. ""^Id. at 429-31. 1976] RIGHT TO DEFEND 753 antees of criminal defendants set forth in the fifth and sixth amendments nor invaded any judicial prerogatives. While pre- dicating his reasoning, in part, on the exigent circumstances of war,^°' Chief Justice Stone reasoned that the accused defendants had an opportunity for a hearing on their defense—a hearing be- fore the Administrator. As he phrased the standard, *'Such a procedure, so long as it affords to those affected a reasonable op- portunity to be heard and present evidence, does not offend against due process."^°^ Despite the fact that the Court had be- fore it a criminal prosecution, almost every case cited in the Court's opinion on these important constitutional issues was civil in nature.^°^ Basically, Chief Justice Stone's opinion treated the case as raising administrative lav^ rather than criminal procedure issues. Indeed, the Court's opinion is totally void of any reference to its prior decision in Cooke or the principles announced in that case. In any event, Chief Justice Stone's reasoning did accept the general notion that due process of law in a criminal case encom- passed "a reasonable opportunity to be heard and present evi- dence-''^^"* However, in his view, it was not necessary that the opportunity to be heard on matters of law be afforded in the criminal trial itself. So long as an ancillaiy opportunity to chal- lenge the validity of the price regulations existed prior to the criminal trial, as it did in Yakus, due process was satisfied under Chief Justice Stone's analysis. Thus, the existence of the protest procedure under the Act, even though no longer available to the defendants, satisfied the constitutional requirements, absent any showing of unfairness in the administrative hearing procedure. The inconvenience to the defendants of having to challenge the price regulations in the distant forum of Washington, D.C., was said to be of lesser importance than the public interest in assur- ing a unitary and rapid scheme of review for the price regula- tions during a national emergency.^°^ The majority also rapidly disposed of the challenge predicated on the sixth amendment right to jury trial. The Court's analysis seemed to be that the jury had only to decide whether the de- fendants had willfully violated a valid price regulation promulgated 201/^^ at 431-33. 2027c?. at 433. ^°^See id. at 433, citing Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937) ; First Nat'l Bank v. Weld County, 264 U.S. 450 (1924) ; and Bradley v. City of Richmond, 227 U.S. 477 (1913). See also Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940) ; Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300 (1937); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); and Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914), cited at 321 U.S. at 434-35. 20^^321 U.S. at 433. ^"^nd. at 437 n.5. 754 INDIANA LAW REVIEW [Vol. 9:711 by the Administrator.'"" The unarticulated premise of the Court's argument was that the jury would never consider the issue of the validit>^ of the regulation since it was solely an issue of law, and, therefore, the defendant lost nothing by transferring the forum for litigation of any such challenge from the criminal trial to the administrative and judicial processes provided under the Act. Unfortunately, the Court failed to consider that the rights guaranteed by the sixth amendment and by article III, section 2, clause 3 of the Constitution also require a trial to be held in the district where the crime was committed. In great part, these guarantees would have assured the defendants' access to local wit- nesses regarding local economic conditions who might otherwise have been unable or unwilling to attend an administrative proceed- ing in a distant forum such as Washington, D.C. Justice Rutledge, joined by Justice Murphy, dissented from the Court's decision,^°^ arguing forcefully that the "dissection of the trial for crime"^°° into two parts—one criminal and one ad- ministrative—violated the defendants* right to a fair trial by jury under the fifth and sixth amendments. Protesting that "the w^ould-be offender is subject to criminal prosecution without a right to question in the criminal trial the constitutionality of the regulation on which his prosecution and conviction hinge,"^*^^ Justice Rutledge urged that the summary proceeding in which the petitioner was required to challenge the price regulation violated many of the traditional protections of criminal defendants, including the article III and sixth amendment rights to a jury trial in the state and district in which the crime was committed,^ '° the right to confrontation,^" and the right to present evidence.''^ However, most important was the stress Justice Rutledge's dissent placed upon the Act's adverse impact on the ability of the crim- irial defendant to present a full and fair defense : [To] state the question often is to decide it ... It is wheth- er, by substituting that civil proceeding for decision of basic issues in the criminal trial itself. Congress can fore- close the accused from having them decided in that trial and thereby deprive him of the protections in trial guar- ^°Vd. at 447-48. ^°^Justice Roberts, in a separate dissenting opinion, stated his belief that the procedures for challenging the validity of the price regulations were unconstitutional. However, the bulk of his dissent focused upon other aspects of the statutory scheme and the issue of whether they were properly justified under the war pov/ers. Id. at 448-60 (Roberts, J., dissenting). ^°«7d. at 481 (Rutledge, J., dissenting). ''°9/d. at 478. '^'"Id. ait 479. '^^'C/. id. Sit 480. ^'2/d. at 481, 485. 1976] RIGHT TO DEFEND 765 anteed all persons charged with crime and thus of full and adequate defense.^ '^ In short, the central flaw which Justices Rutledge and Murphy saw in the statutory scheme in question was the manner in which it operated to deprive the criminal defendant of his right to present a defense. Unfortunately, the majority opinion did not ad- dress this question. Thus, Justice Rutledge's dissent stands as one of the most important early pronouncements on the applica- tion of the right to present a defense in a context of partial ex- clusion of defense evidence. The Court had few occasions to address constitutional chal- lenges to the exclusion of defense evidence in state prosecutions prior to 1960, but the Court's opinions in the cases it did review are more satisfactory than Yakus and are illuminating because they seem to establish a pattern of analysis which was carried forward in the post-1960 cases. In Powell v, Alabama,^' ^ the Court observed that the manner in which the defendants' trial had been conducted substantially interfered with the opportunity to defend. Citing Cooke, the Court noted that due process of law required an opportunity to defend or explain.^ '^ However, Powell was grounded upon the denial of the right to counsel, which resulted from the lack of any appointment of a specific attorney for the defendant until the day of trial, rather than upon the right to present a defense. Thus, the Court chose to predicate its decision on a right expressly enumerated in the sixth amendment and guaranteed by the fourteenth amendment. Similarly, in Gihbs V. Burke,"^^^ one of the issues raised in a collateral challenge to a Pennsylvania conviction for larceny was a ruling by the state trial judge excluding evidence that the complaining witness had previously made a similar baseless charge against the accused. While the Supreme Court found the excluded evidence ''clearly relevant" to the defense based on a theory of consent,^ '^ and held the exclusion to be erroneous, the Court did not rest its decision on a denial of the right to present a defense. Rather, the Court '''Hd. at 482-83. Justice Rutledge also said: [I]n view of the statute's curtailment of his substantive rights and the consequent increase in the burden of proving facts sufficient to nullify the regulation, his chance for escape becomes remote, to say the least. In view of all these resources and advantages, the assertion hardly is sustained that enforcement requires also depriving the accused of his opportunity for full and adequate defense in his crimi- nal trial. Id. at 486-87 (emphasis added.). 21^287 U.S. 45 (1932). 215/rf. at 69. 2^^337 U.S. 773 (1949). 2'77c?. at 777. 756 INDIANA LAW REVIEW [Vol. 9:711 again grounded its holding on the denial of the right to counsel. Thus, when the Supreme Court initially rejected partial exclusions of defense evidence the Court tended to seize upon the readily available and familiar specific guarantees of the Bill of Rights. Aside from its discussions in Cooke and Olive?', the Court virtually ignored until the 1960's the due process basis of the right to present a defense, at least in the context of a criminal trial.^'® And even many of the post-1960 cases were decided on the express guarantees enumerated in the fifth or sixth amendments to the United States Constitution, rather than on the impairment of the defendant's ability to defend himself. C. Criminal Procedure in the Supreme Court Since 1960: The Emergence of the Right To Present a Defense Not surprisingly, the flood of state criminal prosecutions reaching the Supreme Court on direct review or by collateral at- tack since 1960 presented a number of cases in which the ac- cused had somehow been deprived of the opportunity to present significant evidence in his own behalf. Almost uniformly since 1960, the Court has viewed such deprivations unfavorably and has rather consistently protected the right to present a defense with- out express reference to that right. The Court's actions betoken an effort to protect the accused's opportunity to present all relevant material in his own defense. However, the bases of the Court's decisions, at least until Webb v, Texas^^"^ and Chambers v, Mississippi,^^'^ did little to advance the protection of this right be- cause the common rationale of the cases was not a general analysis of the fundamental nature of the right to defend. Instead, the cases were predicated on an expansion of the express guarantees of the fifth and sixth amendments to cover the facts of each one. This mode of analysis, of course, often strained beyond recognition the language of the fifth and sixth amendment guarantees. In light of the body of case law already developed in the criminal and civil contempt areas regarding the due process right to be heard, the Court's failure to analyze on due process grounds criminal cases raising right to defend issues is somewhat curious. However, the Court's reluctance to return to such due process cases as In re Oliver^''' and Cooke v. United States'"^' during the 1960's is partially explained by the history of the development dur- ing the 1960's of the incorporation doctrine. Although the in- corporation doctrine began as a means by which the Court could 2ie^wt see Cole v. Arkansas, 333 U.S. 196 (1948). See note 196 supra. ^'^09 U.S. 95 (1972). 22°410 U.S. 284 (1973). "'333 U.S. 257 (1948). "'^267 U.S. 517 (1925). 1976] EIGHT TO DEFEND 757 apply some of the more fundamental guarantees of the fifth and sixth amendments to the states,^" in addition to whatever other procedural protections the due process clause provided,^ '^ the Supreme Court during the 1960's came to regard the incorpora- tion doctrine as virtually the sole means of analyzing constitutional rights applicable to state criminal procedure.^^^ Thus, as the following discussion demonstrates, the Court during this period commonly attempted to resolve criminal procedure problems by finding an express guarantee on which to rest its decision rather than by discussing concepts of fundamental fairness v/hich would have permitted its decisions to be grounded on the broad and flexible concepts of the due process clauses of the fifth and four- teenth amendments. In Ferguson v. Georgia,^'^^ the Supreme Court was confronted in 1961 with a case involving the Georgia rule that precluded the defendant from giving sworn testimony in a criminal case.^^^ The Georgia testimonial disqualification rule at issue in Ferguson was 2235ee, e.g., Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968) ; Malloy V. Hogan, 378 U.S. 1 (1964) ; Palko v. Connecticut, 302 U.S. 319, 328 (1937). 224C/. Rochin V. California, 342 U.S. 165 (1952) ; Hurtado v. California, 110 U.S. 516 (1884). ^^^Compare Schmerber v. California, 384 U.S. 757 (1966), with Rochin V. California, 342 U.S. 165 (1952). Bat see Sheppard v. Maxwell, 384 U.S. 333 (1966) ; Estes v. Texas, 381 U.S. 532 (1965) ; Brady v. Maryland, 373 U.S. 83 (1963). See also Malloy v. Hogan, 378 U.S. 1 (1964). In Washington v. Texas, 388 U.S. 14 (1967), the Court said: "[I]n recent years we have in- creasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law." Id. at 18. Thus, with rare exceptions noted above, the criminal pro- cedure decisions of the Supreme Court during the 1960's commonly looked to the specific guarantees of the fifth and sixth amendments to determine what process was due under the fourteenth amendment. "6865 U.S. 570 (1961). ^^^The Georgia rules prohibiting the accused from giving sworn testimony but permitting him to make an unsworn statement to the jury had, by the end of the nineteenth century, become historical anomalies in American criminal practice. As late as 1881, the Georgia Supreme Court held that the accused's right to address the jury was not limited by traditional evidentiary rules and clearly indicated that the defendant was to be given broad leeway in his statement. See Hackney v. State, 101 Ga. 512, 519-20, 28 S.E. 1007, 1010 (1897); Coxwell v. State, 66 Ga. 309, 316 (1881). Later, procedural rules began to infringe upon the defendant's unrestricted freedom in his ad- dress to the jury. See Saunders v. State, 172 Ga. 770, 158 S.E. 791 (1931) ; Vin- cent V. State, 153 Ga. 278, 293, 112 S.E. 120, 127 (1922) ; Dunwoody v. State, 118 Ga. 308, 45 S.E. 412 (1903) ; Curtis v. State, 48 Ga. App. 135, 137-38, 172 S.E. 99, 100 (1933) ; Theis v. State, 45 Ga. App. 364, 164 S.E. 456 (1932). By the time the United States Supreme Court decided Ferguson v. Georgia, 365 U.S. 570 (1961), the Georgia statement procedure had become little more than a means of permitting the defendant to testify without being sw^orn, as the Supreme Court recognized. Id. at 590-91. 758 INDIANA LAW REVIEW [Vol. 9:711 the last vestigial remnant of the English sixteenth and seven- teenth century common law practice in the United States.'"* The defendant was not, however, totally precluded from addressing the jury since the Georgia statute, consistent with the common law experience, permitted the accused to address the jury and court and make ''such statement in the case as he may deem proper in his defense."^''^ Under Georgia law, the accused's statement was entitled to whatever force the jury chose to give it.^''^ The Georgia practice had the advantage of preventing the accused from being cross-examined involuntarily,"' but twentieth century Georgia de- cisions had detrimentally limited the defendant's scope of com- ment to those matters which, if offered in evidence, would be admissible."' The petitioner in Ferguson had been convicted of murder and sentenced to death. At trial the defendant had sought, as part of his unsworn statement to the jury, to be examined by his counsel; however, the trial judge denied the accused's request and thereby limited counsel's role to merely advising his client in the formula- tion of the client's statement. As the concurring opinion in Ferguson notes,"^ the petitioner had not sought to be examined as a sworn witness but merely requested counsel's assistance in the form of questions in presenting the unsworn statement to the jurors. Thus, as the majority viewed the case, the only issued posed was the constitutionality of preventing defense counsel from assist- ing the accused during his statement to the jury. As the majority read the record, the constitutionality of Georgia's testimonial disqualification of the accused was not at issue. Therefore, Justice Brennan's opinion for the Court, although setting forth an extensive and quite scholarly treatment of the history behind the common law testimonial incompetency of the accused,"^ carefully "®iSee generally 365 U.S. at 577 & n.6. 22'[1878-79] Ga. Acts 53 (codified as amended Ga. Code Ann. §38-415 (1974)). ^'""See, e.g., Vaughn v. State, 88 Ga. 731, 734, 16 S.E. 64, QQ (1892) ; Underwood v. State, 88 Ga. 47, 57, 13 S.E. 856, 858 (1891). "'[1878-79] Ga. Acts 53 (codified as amended GA. Code Ann. §38-415 (1974)). 2^ ''See note 227 supra. "=365 U.S. at 601 (Frankfurter, J., concurring) ; id, at 601-03 (Clark, J., concurring), ^^*Id. at 573-85. While Justice Brennan's recitation of the history of the accused's testimonial disqualification rule follows quite closely the history in sections I and II of this Article, there appears to be one slight historical error evident in Justice Brennan's opinion. Relying on 2 WiGMORE, supra note 23, § 575, Justice Brennan suggests that the accused's testimonial disquali- fication was a direct descendant of older modes of trial such as compurgation and wager of law. 365 U.S. at 573. These modes of trial were essentially swearing contests of the compurgators for each side in which numbers, not 1976] RIGHT TO DEFEND 760 based the holding upon denial of the right to have counsel ques- tion the accused during his unsworn statement to the jury.^''^ The Court held the right to counsel applicable to an unsworn state- ment and, therefore, the refusal to permit the "guiding hand of counsel"^" at this stage of the prosecution violated the sixth and fourteenth amendments.^^^ The Court stressed that an accused making his unsworn state- ment faced many pitfalls that could be obviated by counsel's as- sistance. The Court observed that, under Georgia practice, the ac- credibility, was dispositive. In this context it was, indeed, thought unseemly to present the defendant to lend his oath to increase the number of his com- purgators. See notes 7-11 supra and accompanying text. However, the testi- monial disqualification of the accused, although posing an interesting analogy to trial by compurgation, does not seem to be the product of that practice. It is more probable that the origins lie elsewhere in the history of English criminal procedure. When the trial evolved to the point of accepting the testimony of witnesses under oath and weighing credibility, the criminal practice initially permitted only witnesses for the prosecution to be heard. This trial procedure was imposed either because it was thought treasonous to permit witnesses to give sworn testimony against the Crown or because the prosecution had the burden of demonstrating the accused's guilt so convincingly that no defense was thought necessary. See notes 26-27 supra and accompanying text. It is from this procedural practice that the accused's disqualification emerged. As the proscription on presenting defense wit- nesses was gradually dropped in 17th and 18th century England, testimonial competency was extended only to the accused's witnesses, not to the accused himself. The failure to remove the disqualification from the accused until the 19th century was the result of fears of perjury due to the accused's obvious interest in the trial's outcome, as well as concern over potential self- incrimination. See generally 1 Stephen, General View, supra note 7, at 187-88. Thus, the testimonial disqualification of the accused was a holdover from the era when the defendant's witnesses were excluded altogether from the trial. That this practice had absolutely no connection with trial by compurgation is evident from the fact that, by its very nature, the compurga- tion contest required compurgators for both sides to be sworn and state their oaths. ^^^365 U.S. at 572, 596. 236/d. at 594, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932). ^^''The Georgia legislative response to Ferguson indicates that the state apparently read Ferguson as declaring unconstitutional the state incompetency provisions rather than as a mere limitation of the statute to require the right to counsel. In 1962, the statute was amended to eliminate the accused's testi- monial incompetency and to permit him at his option to either testify or give an unsworn statement. The revision also provided a statutory privilege against being compelled to testify. [1962] Ga. Acts 133-34 (codified as amended at Ga. Code Ann. § 38-415 (1974) ). The statute was further amended in 1973 to allow an accused to make an unsworn statement to the jury after he has already testified in his own behalf only if he has presented no other evidence. In that context he is apparently permitted to make the defense's closing argument. [1973] Ga. Acts 292, 294 (codified at Ga. Code Ann. §38-415 (1974)). The current statute may raise further significant consti- tutional difficulties. Cf. Brooks v. Tennessee, 406 U.S. 605 (1972). 760 INDIANA LAW REVIEW [Vol. 9:711 cused's scope of comment was substantially circumscribed by the rules of evidence.'^'^ Furthermore, the Court noted the significant potential for self-incrimination in the accused's statement and that Georgia law recognized that potential and bound the accused to any admission contained in his statement."' Another potential pitfall noted was that Georgia practice permitted the prosecution to intro- duce rebuttal evidence, otherwise inadmissible, to refute false state- ments made by the defendant in his statement.^^° However, the most significant obstacle noted by the Court was that the lack of counsel's guidance in presenting the accused's statement often precluded him from having "the opportunity to try to exculpate himself by an explanation delivered in an organized, complete and coherent way."^^' Precluding defense counsel from either examining the accused or reminding him of elements of his de- fense for inclusion in his statement prevented the accused from presenting his defense in an organized, complete, and coherent fashion. The Court also pointedly noted that Georgia practice per- mitted the trial judge to preclude the accused from making a supplemental statement consisting of subject matter suggested by defense counsel. ^^^ The Court's decision in Ferguson, while formally predicated on the right to counsel, rested in great part on the fear that an accused, making a statement without counsel's assistance "may fail properly to introduce, or to introduce at all, what may be a perfect defense.'"^^ Thus, the Court feared that an innocent de- fendant could be convicted under the Georgia practice "because he does not know how to establish his innocence."^^"^ While Justice Brennan's opinion in Ferguson rests on the right to counsel, it is evident that the desire to assure that the accused's defense is fully presented played a major role in swaying the Court. On the other hand, Ferguson clearly does not purport to articulate any new substantive doctrine regarding the right to present a defense. Justice Brennan carefully limited the Court's holding, as noted above, to the application of the right to counsel to the Georgia unsworn statement practice. Such a limitation followed the earlier pattern of resting right to defend cases on the express and specific guarantee of the right to counsel pro- tected by the sixth amendment and the due process clause of the fourteenth amendment. 23^365 U.S. at 590. 22'/(i. at 590-91. ""^Hd, at 591. 242/d. at 592, citing August v. State, 20 Ga. App. 168, 92 S.E. 956 (1917). ^^^365 U.S. at 595. ^^^/d., quoting Powell v. Alabama, 287 U.S. 45, 69 (1932). 1976] RIGHT TO DEFEND 761 The limitation of the Courtis holding had a costly result. For example, Justice Brennan did not squarely address the Georgia testimonial disqualification rule^^^ which was the real impediment to the accused's ability to present his defense because the majority clearly did not think that the procedural posture of the case raised the constitutionality of that rule.^^* Yet, as the Court seemingly recognized, it was this rule, rather than the exclusion of counsel's participation in the making of the unsworn statement, which hindered the accused in presenting his defense and con- vincing the jury of his innocence. Since the defendant's state- ment was unsworn, it did not have to be believed and could be ignored by the jury under Georgia law. Furthermore, the ac- cused's statement was, with his consent, subject to cross-examina- tion under Georgia practice ; however, the accused had no means of compelling the state to cross-examine where he deemed it a desirable method of bolstering his statement.^^^ Thus, the Court noted that the testimonial disqualification rule so undermined the Georgia unsworn statement procedure that **in practice [the un- sworn statement of the accused] is worth, generally, but little if anything to defendants."^''® The devastating impact of the Georgia testimonial disqualifi- cation rule on the accused's ability to defend himself, when coupled with the practice of limiting the accused's statement to matters which might be properly admitted into evidence, apparently con- cerned Justices Frankfurter and Clark even more than the denial of the right to counsel. Thus, they concurred in the result on the ground that the Georgia testimonial disqualification rule was un- constitutional. Justice Frankfurter framed the issue this way : This is not a right-to-counsel case .... What is in con- troversy here is the adequacy of an inextricably unified scheme of Georgia criminal procedure. The right to make an unsworn statement, provided by § 38-415, is an at- tempt to ameliorate the harsh consequences of the in- competency rule of the section follovdng. Standing alone, § 38-415 raises no constitutional difficulty. Only when considered in the context of the incompetency provision does it take on meaning. If Georgia may constitutionally altogether bar an accused from establishing his innocence as a witness, it goes beyond its constitutional duty if it al- 245 [1866] Ga. Acts 133, 135 (repealed 1962). 24*365 U.S. at 572, 247/cZ. at 592, citing Boyers v. State, 198 Ga. 838, 844-45, 33 S.E.2d 251, 255-56 (1945). 24^365 U.S. at 587, quoting Bird v. State, 50 Ga. 585, 589 (1874). 762 INDIANA LAW REVIEW [Vol. 9:711 lows him to make a speech to the jury whether or not aided by counsel.'^''^ The issue of the measure of the constitutional protection for the accused's right to defend himself was squarely framed by Jus- tice Frankfurter; however, his opinion was devoted primarily to arguing that the issue of the constitutionality of the Georgia incompetency statute was properly raised.^^° Thus, Justice Frank- furter's opinion did not address the issue he posed—^the constitu- tionality of the Georgia incompetency rule. That task was left to Justice Clark, in whose concurring opinion Justice Frankfurter joined. Justice Clark would have ruled the incompetency provision unconstitutional on due process grounds. Unfortunately, his opin- ion provided no analytical support for his conclusion. Rather, he simply stated his conclusion: Reaching the basic issue of incompetency, as I feel one must, I do not hesitate to state that in my view § 38-416 does not meet the requirements of due process and that, as an unsatisfactory remnant of an age gone by, it must fall as surely as does its palliative, § 38-415."' How did the incompetency rule violate due process of law? What test did Justice Clark apply? Neither of these questions is ad- dressed in his opinion. Justice Clark cited no cases and provided no analysis in support of his conclusion. His opinion conveys a recognition of the fundamental unfairness to the accused result- ing from preventing him from testifying, but he did not develop a satisfying analytical framework for the problem. It appears that Justice Clark was searching for the right to present a de- fense but stopped just short of its discovery. Case support for his conclusion already existed in the McVeigh'^^^ cases, Cooke v. United States''^'' and In re Oliver'^^'' but, because of his failure to 2^9365 U.S. at 599 (Frankfurter, J., concurring). ^^°Justice Frankfurter argued that it is simply "formalism run riot to find that the division into two separate [statutory] sections of what is organically inseparable may not for reviewing purpose be treated as a single, appealable unit." Id. at 600. Alternatively, he would have dismissed the appeal for want of a substantial federal question since "considered in vacuo, § 38-415 fails, as has been pointed out, to present any reasonable doubts as to its constitutionality, for it provides only an additional right." Id. Thus, Justice Frankfurter, never known as a Justice who easily dispensed with procedural niceties, took issue with the majority's narrow view of the issue available for decision. ^=^365 U.S. at 602. (Clark, J., concurring). ^^^Windsor v. McVeigh, 93 U.S. 274 (1876); McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1870). 25^267 U.S. 517 (1925). 25^333 U.S. 257 (1948). 1976] RIGHT TO DEFEND 763 cite these cases or to otherwise explain his analysis, Justice Clark missed an opportunity to establish the major theoretical frame- work for analysis of obstacles to the presentation of an accused's defense. The failure of the various opinions in Ferguson to analyze the case from the standpoint of the right to present a defense con- tinued the pattern established in earlier cases of grounding crim- inal procedure decisions on specific fifth and sixth amendment guarantees,^" and of using the incorporation doctrine to make those express guarantees applicable to the states."^ This type of analysis continued throughout the 1960*s and often resulted, as discussed be- low, in decisions based on specific guarantees which seemed to have little applicability to the problem at hand,^" thereby strain- ing the language of the fifth and sixth amendments beyond the limits of credible analysis. This strain could have been avoided by an early recognition in Ferguson of a due process right to present a defense. The Court's next opportunity to address the right to present a defense arose in the context of a group of cases challenging special recidivist and sexual offender sentencing statutes under which defendants had been sentenced to terms longer than those normally prescribed for the offense committed. Relying in part on its prior decision in Chandler v, Fretag,^^^ the Court in Oyler V. Boles^^'^ and Specht v. Patterson^^'^ held that a defendant sen- tenced pursuant to special sentencing statutes must be afforded "an opportunity to be heard"''''' as a matter of due process of law. In Oyler, the Court found that the West Virginia recidivist sen- tencing procedure afforded a sufficient opportunity to be heard and therefore satisfied constitutional requirements. However, the Colorado Sex Offenders Act at issue in Specht permitted summary sentencing as a sex offender if the trial court was ''of the opin- ion that any . . . person [convicted of specified sex offenses] , if at large, constitutes a threat of bodily harm to members of the ^''See Gibbs v. Burke, 337 U.S. 773 (1949); Powell v. Alabama, 287 U.S. 45 (1932). 256j)^j,jjjg the 1960's the Court increasingly and almost exclusively- analyzed problems of state criminal procedure posed under the fourteenth amendment by engaging in an exploration of the specific guarantees of the Bill of Rights to determine which of them might be incorporated into the due process clause. See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963). ^^^^See, e.g.. Brooks v. Tennessee, 406 U.S. 605 (1972). ^^®348 U.S. 3 (1954) (due process requires opportunity to obtain counsel for recidivist sentencing hearing). See also Chewning v. Cunningham, 368 U.S. 443 (1962). "'368 U.S. 448 (1962). 260386 U.S. 605 (1967). =*^368 U.S. at 452. 764 INDIANA LAW REVIEW [Vol. 9:711 public, or is an habitual offender and mentally 111.^*^ The only procedural requirement demanded by the Colorado statute before the trial court could impose an indeterminate sentence of one day to life required the court to secure a written psychiatric re- port, which included the examining psychiatrist's opinion as to whether the accused should be committed to a mental facility or was capable of supervision on probation. Stressing that the de- termination of the offender's status as a physical threat to the public or as a mentally ill recidivist is an issue separate and apart from the guilt of the substantive offense,^" the Court, in an opinion by Justice Douglas, held that the Colorado procedure denied the petitioner due process because it denied the accused the opportunity to be heard, to offer evidence, and the rights to counsel and cross-examination.^*'* Neither Oyler nor Specht contributed any significant ana- lytical development to the right to present a defense. However, in these cases the Court did extend directly into the criminal process the concept, previously applied in civil cases and criminal contempt cases, that due process of law required the opportunity to be heard. This extension was certainly not an extraordinary leap from criminal contempt cases as Cooke and Oliver,'^^^ As in Cooke and Oliver, the sentencing procedures in Specht prevented the defendant from introducing any evidence whatsoever on the issues posed by the Colorado Sex Offenders Act. Neither Oyler nor Specht involved the more complex question of partial exclusion of the defense case. The Supreme Court confronted a partial exclusion case in 1967 when, in deciding Washington v. Texas,'^^^ the Court considered the application of the Texas statutory rule^*^ which prevented princi- pals, accomplices, or accessories in the same crime from testifying =^"Ch. 89, §1, [1953] Colo. Laws 249 (repealed 1968). ^^^386 U.S. at 608-10. This point was vital because it permitted the Court to harmonize its decision with its prior opinion in Williams v. New York, 337 U.S. 241 (1949), holding that due process did not require an opportunity to be heard or even a hearing regarding traditional sentencing. '^6^386 U.S. at 610. '"^^Interestingly, neither of these cases was cited by the majority of the Court in either Oyler or Specht. ^^''388 U.S. 14 (1967). ^^^Tex. Penal Code art. 82 (1952) (repealed 1967). The 1925 Texas Code of Criminal Procedure, article 711 (repealed 1965), provided a similar dis- qualification but permitted testimony of accomplices, accessories, or coprinci- pals on the behalf of the accused if the witness had been previously acquitted or the charges had been dismissed. Similarly, the 1925 Code, article 716, permitted such witnesses to testify for the accused, even if convicted, where the punish- ment imposed was only a fine which had already been paid. 1976] RIGHT TO DEFEND 766 in behalf of each other.'*** The petitioner, Jackie Washington, had been convicted of murder after the highly exculpatory testimony of a coprincipal, Charles Fuller, had been excluded. The facts of the case indicate that only Fuller, Washington, and the decedent were present at the scene of the crime. Washington's defense was that Fuller had fired the fatal shot and that Washington, al- though bearing a personal grudge against the decedent over the loss of his girlfriend, had attempted to prevent the shooting. Other evidence partially corroborated that version of the facts. It was Fuller's shotgun which was involved in the shooting and Fuller had approached and left the scene of the shooting carrying that shotgun. At the trial, Washington sought as part of his defense to call Fuller, the only other living witness to the shooting, in order to have him testify that the accused had tried to pull Fuller away from the scene of the crime and had tried to persuade him to leave. Fuller would further have testified that the petitioner had run from the house before Fuller fired the fatal shot. The petitioner's efforts to have Fuller verify his defense ran head- long into the roadblock of the Texas accomplice disqualification statute and, accordingly, Fuller's testimony was excluded. Thus, the issue framed in Washington presented the problem of the right of the criminally accused to present a defense in its most common and graphic form—^the conflict of an evidentiary rule with the accused's efforts to introduce exculpatory testimony. Finding that Fuller's testimony was "relevant and material, and that it was vital to the defense,"^*' Chief Justice Warren, speaking for a unanimous Court,^^° held that the application of the Texas statute to this case^^' violated the petitioner's right ^*®As the Court's opinion noted, the Texas procedure permitted accom- plices or coprincipals to testify for the state against other accomplices or principals. Furthermore, the Texas disqualification rule applied whether the coprincipal, accomplice, or co-accessory was charged "in the same or by different indictments" (ie., whether the trials were joint or several). 388 U.S. at 22 & n.20. ^69/cf. at 16. ^^°Justice Harlan's concurring opinion is discussed at text accompanying note 291 infra. 27' While the clear impact of the Court's opinion in Washington was that the Texas accomplice disqualification statute, Tex. Penal Code art. 82 (1952) (repealed 1967), was facially unconstitutional, the Court never expressly so held. Rather, the Court merely stated that "the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense." 388 U.S. at 23. Even the way in which the Court framed the issue—"whether [the right to compulsory process] was violated in the circumstances of this case," id. at 19, suggests that the Court did not view itself as ruling on the facial constitutionality of the statute but was concerned with the constitutionality 766 INDIANA LAW REVIEW [Vol. 9:711 to compulsory process, which the Court simultaneously found to be incorporated into the fourteenth amendment's due process clause.^'' In deciding that Texas's refusal to permit Fuller to testify for the petitioner violated the right to compulsory process, the Court strained the history and language of the sixth amend- ment somewhat. Chief Justice Warren urged that resolution of the question ''require [d] some discussion of the common-law con- text in which the Sixth Amendment was adopted,"^'^ and then proceeded to discuss the history of the rules excluding defense witnesses, a practice which ended in 1701 as the Court notes.^^^ Chief Justice Warren then pointed out that the common law con- tained disqualifications based on interest of defendants and co- defendants. ^^^ While the Chief Justice was correct in his state- ment that the disqualification of defendants was a relic of the common law disqualification rules, he was incorrect in sug- gesting that the Texas disqualification rule preventing accomplices and accessories from testifying for the accused was a holdover from the common law. After 1701, the common law disqualified accomplices and accessories from testifying on behalf of other co-accomplices only where they were jointly tried.^^* Even then, the disqualification stemmed not from their status as accessories or accomplices, but from their disqualifications as defendants testifying in their own trials. Thus, if a severance had been se- cured, they could testify on behalf of codefendants, coprincipals or other accessories. However, after the abolition of the dis- qualification of the accused in the late nineteenth century, the question of whether the disqualification of codefendants had also been abolished frequently arose. While the majority of the courts said that it had been,^^^ a few jurisdictions held to the contrary.^^® Texas seems to have been the only state to give a negative statu- tory response to this issue. Therefore, the origins of the Texas accomplice disqualification rule lay not in the common law dis- of the application of the statute to the petitioner's case. The reason for the Court's failure to decide the facial constitutionality of the Texas statute seems to be that the statute had been repealed by the time the case reached the Court. 388 U.S. at 16 n.4. ^7^388 U.S. at 17-19. ^'Ud. at 19. ^^Vrf. at 20 n.l3. ^''Id. at 20. ^^^See generally 2 V^^IGMORE, supra note 23, § 580, at 707-10. ^^^See generally cases collected in 2 id. § 580, at 713 n.l5. ^'^See, e.g., Ballard v. State, 31 Fla. 266, 12 So. 865 (1893) ; State v. La Rocca, 168 La. 204, 121 So. 744 (1929); State v. Dreher, 166 La. 924, 118 So. 85 (1928); State v. Breaux, 104 La. 540, 29 So. 222 (1901); State V. Angel, 52 La. Ann. 485, 27 So. 214 (1899); State v. Franks, 51 S.C. 259, 28 S.E. 908 (1898). 1976] RIGHT TO DEFEND 161 qualification of all defense witnesses, but rather in late nineteenth century statutory developments regarding the testimonial en- franchisement of the accused. Thus, the problem posed in Wash- ington was, like many of the modern obstacles to the accused's ability to present his defense, a result of post-Bill of Rights de- velopments, unforeseen by the Framers of the sixth amendment. In discussing the federal evidentiary cases involving the ac- complice disqualification rule. Chief Justice Warren totally ignored late nineteenth century procedural developments such as the testi- monial enfranchisement of the accused. Thus, the Chief Justice asserted that in United States v. Reid,^^'^ the "federal courts fol- lowed the common-lav/ restrictions for a time, despite the Sixth amendment.""^ He then noted that Reid was **not satisfactory to later generations"^®' and was overruled in Rosen v. United States'"'"'' in 1918. In his analysis of the cases. Chief Justice Warren totally ignored the fact that the gradual but continuous elimination of the testimonial disqualification of the accused during the late nine- teenth century wholly undermined Reid and set the stage for its overruling in Rosen, Chief Justice Warren's historical view may have been crucial to his analysis, for he seemed to argue that the sixth amendment was in part deliberately intended to abolish the common law dis- qualification rules. ^" Since the Texas rule w?vS an outgrowth of late nineteenth century developments rather than pre-sixth amend- ment common law procedures, the argument that the sixth amend- ment was specifically intended to prevent such rules is simply un- tenable. In fact, based on the history of criminal procedure and the history of the sixth amendment, a good argument can be made that the sixth amendment was designed to do simply what it says —to grant the subpoena power to the accused which he lacked at common law."^ Although Chief Justice Warren's discussion of history was weak, the holding in Washington is clear and forthright—^the sixth amendment right to compulsory process is violated by a state rule denying the accused the right to present a witness cap- able of giving material exculpatory testimony. Chief Justice War- ren replied to the argument that the right to compulsory process 27953 U.S. (12 How.) 361 (1851), discussed at notes 155-64 supra and accompanying text. 2«°388 U.S. at 21. 2«7d. 262245 U.S. 467 (1918). 2^3388 U.S. at 19-20, relying in part on 3 J. Story, Commentaries on THE Constitution of the United States §§ 1786-88 (1st ed. 1833). '^^^See notes 114 & 16 supra and accompanjdng text. 768 INDIANA LAW REVIEW [Vol. 9;711 was not denied in Washington because the accused had the right to subpoena witnesses, with the following statement: The Framers of the Constitution did not intend to com- mit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.^®^ Chief Justice Warren's opinion does demonstrate the Court's sensitivity to the accused's right to present a defense. Citing In re Olivery'^^^ the Chief Justice stressed that the due process clause protected that right: The right to offer the testimony of witnesses, and to com- pel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the de- fendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purposes of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.^®'' Although the Chief Justice's forceful assertion of a due process foundation for the right to present a defense provided a sig- nificant step forward in recognizing and delineating the protec- tion of that right, his invocation of the incorporation doctrine^®* and consequent reliance on the sixth amendment compulsory process guarantee^ °^ left significant doubt about the extent of the right to present a defense. Was the due process analysis invoked in Wash- ington only applicable if one could find a specific guarantee in the Bill of Rights setting forth the protection at issue? Was the protection afforded by the compulsory process clause co-ex- tensive with the right to present a defense? Would the com- pulsory process analysis be applied where the testimony of the accused's witnesses was only partially excluded? Washington was easy to decide on sixth amendment principles. While the evidence excluded involved only part of Washington's total defense, the Texas statute, by disqualifying accomplices, co- principals, and accessories as defense witnesses was functionally equivalent to preventing the accused from compelling their at- ^'^^SSS U.S. at 23. ^®*333 U.S. 257 (1948), discussed at notes 193-96 supra and accompanying text. "^388 U.S. at 19. ^se/d at 17-18. -"^Ud, at 19-23. 1976] RIGHT TO DEFEND 769 tendance at trial. Obviously, a more difficult case is posed where the testimony of a defense witness is not totally excluded but is only partially excluded because of evidentiary rulings on issues such as hearsay or relevancy. It is doubtful that Chief Justice Warren was saying that the right to compulsory process governs such partial exclusions. Rather, the precise issue framed in Wash- ington lent itself readily to analysis under the compulsory process clause. Yet the Chief Justice was troubled even by that limited ra- tionale, since he noted that the Court's holding in Washington did not disapprove of traditional testimonial privileges or "nonarbi- trary state rules that disqualify as witnesses persons who, because of mental infirmity or infancy, are incapable of observing events or testifying about them.""° If the right to present witnesses in one's own behalf is protected solely by the right to compulsory process and incorporation doctrine analysis, it is difficult to under- stand how the right to defend could be guaranteed in partial ex- clusion cases. One may search the Bill of Rights in vain for lan- guage expressly preventing partial evidentiary infringement of the right to defend. Washington therefore left unexplained major questions of how and when the accused's right to present a defense would be constitutionally protected. Would the due process clauses of the fifth and fourteenth amendments, coupled v^dth the penum- bras of the fifth and sixth amendments, be sufficient to defeat evi- dentiary rulings resulting in partial exclusions of testimony, or must one engage in the search for an express guarantee in the language of the fifth and sixth amendments? These issues were not to be addressed until the 1970's. Characteristically, Justice Harlan's concurring opinion in Washington condemned the majority's reliance on the incorpora- tion doctrine. He said : In my opinion this is not, then, really a problem of "com- pulsory process" at all, although the Court's incorpora- tionist approach leads it to strain this constitutional pro- vision to reach these peculiar statutes.'291 However, rather than embarking on an exploration of the right to present a defense. Justice Harlan seized on the discriminatory impact of the Texas procedure which forbade the accused, but not the state, from utilizing the testimony of accomplices and 2'°7(f. at 23 n.21. This footnote also might suggest that the rationale of the Court's decision in Washington had little to do with the right to com- pulsory process, but rather was predicated on the lack of reciprocity in the Texas statute—the state could utilize the testimony of accomplices, coprinci- pals, and accessories, but the accused could not. Cf. Wardius v. Oregon, 412 U.S. 470 (1973). 2''/c?. at 24 (Harlan, J., concurring). "70 INDIANA LAW REVIEW [Vol. 9:711 other potential co-defendants. Thus, Justice Harlan's concurrence was based on a fundamental fairness-due process analysis. The Court next had occasion to comment on the right to present a defense in Jenkins v, McKeithen,^'^^ a case challenging the constitutionality of the statute creating the Louisana Labor Man- agement Commission of Inquiry.^" Jenkins was a civil suit. How- ever, the case was directly relevant to questions of criminal proce- dure since the Commission served a quasi-criminal function. As the Couii; noted, the Commission's sole responsibility was to investigate cnminal offenses in labor relations and to determine whether there was probable cause to believe criminal violations had oc- curred. The Commission's findings were public and were re- ported to proper state and federal prosecutorial agencies.^'"* The Commission's charter expressly precluded it from investigating ''civil aspects of any labor problem."^'^ Thus, the Commission was solely a board of criminal inquiry, applying a grand-jury-type probable cause standard, but whose proceedings and findings were, unlike those of the grand jury, matters of public record. The Commission was challenged on a plethora of grounds, includ- ing nonconformity to procedures constitutionally guaranteed to an accused in a criminal trial. Relying on comments in the prior de- sion of Hannah v. Larche,'^^^ the Court held that, because of the Commission's quasi-criminal role, it was required to observe the criminal guarantees made obligatory on the states by the four- teenth amendment due process clause. In his opinion, Justice Mar- shall enumerated the rights of the accused left unprotected by the Commission's rules.^'^ His enumeration included not only the sixth amendment guarantees of confrontation and cross-examina- i92'^395 U.S. 411 (1969). '^'^No. 2, §880.6B, [1967] La. Acts 5 (repealed 1972). ^'^395 U.S. at 415-17. ^9^No. 2, §880.6B, [1967] La. Acts 5 (repealed 1972). ^'*363 U.S. 420 (1960) (Frankfurter, J., concurring). Were the [Civil Rights] Commission exercising an accusatory func- tion, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such find- ing or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecution might well be the controlling starting point for assessing the protection which the Commission's procedure provides. Id. ait 488. ^'^The decision was a 5-3 decision, and Justice Marshall's opinion was joined by only two other Justices—Chief Justice Warren and Justice Bren- nan. Justices Douglas and Black concurred in the result on procedural due process grounds. Id. at 432-33. Justices Harlan, Stewart, and White dissented. 1976] RIGHT TO DEFEND 771 tion^'® but also the right "to present evidence on [one*s] own be- half."'" Specifically, Justice Marshall wrote: The Commission's procedures also drastically limit the right of a person investigated to present evidence on his own behalf. It is true that he may appear and call a "reasonable number of witnesses" in executive ses- sion, but should the Commission decide to hold a public hearing, he is limited to presentation of his own testimony and the "pertinent" written statements of others. The right to present oral testimony from other witnesses and the power to compel attendance of those witnesses may be denied in the discretion of the Commission. The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause. And, as we have noted above, this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime. We do not mean to say that the Commission may not im- pose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person's right to present his case should not be left to the unfettered discretion of the Commission. ^°° Thus, Justice Marshall's opinion in Jenkins added more weight to the slowly emerging concept that the criminally accused has a due process right to present his defense without burdensome re- strictions imposed by a hearing tribunal. However, Jenkins added little to the formulation of an analytical test for determining the point at which procedural or evidentiary rules or rulings violate that right. The analytical framework of the right to defend re- mained and would continue to remain doctrinally anemic. The Court had several additional opportunities to address the problem of the right to present a defense during the late 1960's and the early 1970's in a number of cases raising challenges to limitations on the accused's efforts to cross-examine witnesses. ^°' These cases, which were easily and properly analyzed under the confrontation clause of the sixth amendment, had an important impact on the accused's ability to present his defense through ef- fective cross-examination. Interestingly, however, none of the major confrontation cases recently considered by the Court have 29^395 U.S. at 428-29. 299/d. at 429. ^°°7^See Jenkins v. McKeithen, 395 U.S. 411 (1969), discussed at notes 292-300 supra and accompanying text; Specht v. Patterson, 386 U.S. 605 788 INDIANA LAW REVIEW [Vol. 9:711 The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's oion behalf have long been recognized as essential to due process.^" While the rights to confront and cross-examine witnesses are surely protected by the express provisions of the sixth amendment, the ''right to a fair opportunity to defend" and the right "to call witnesses in one's own behalf" are not, unless they are always considered sheltered under the expanding umbrella of the com- pulsoi-y process clause of the sixth amendment.^^"^ Accordingly, Justice Powell chose the due process clause of the fourteenth amendment, rather than any incorporation theory, as the basis for the right to defend. After noting that Chambers was a right to defend case. Justice Powell's opinion immediately launched into an evidentiary rather than a constitutional analysis. Finding the traditional ''voucher" rule to have "little present relationship to the realities of the criminal process,"^^^ the Court held that the state trial court denied Chambers the right to confrontation of witnesses, in violation of the sixth and fourteenth amendments, when it pre- vented Chambers' counsel from cross-examining McDonald. While Justice Powell's opinion cites a few confrontation cases,^'^'' it con- tains little discussion of this rather significant expansion of the confrontation clause to encompass cross-examination of the de- fendant's own witnesses, even if adverse in interest. The con- frontation clause of the sixth amendment is phrased in terms of the right of the accused to confront "witnesses against him," Yet, McDonald never accused Chambers of anything ; his testimony was important only because he had confessed to the crime himself. Thus, insofar as the Chambers opinion purports to rely on the confrontation clause, the Court seems to have expanded the sixth amendment protection beyond its express language. Justice (1967), discussed at notes 260-65 supra and accompanying text; In re Oliver, 333 U.S. 257 (1948), discussed at notes 193-96 supra and accompanying text. ^"410 U.S. at 294 (emphasis added). ^^'^But see Westen, supra note 114. ^"410 U.S. at 296. -667J. at 295, citing Mancusi v. Stubbs, 408 U.S. 204 (1972) ; Button v. Evans, 400 U.S. 74, 89 (1970) ; Berger v. California, 393 U.S. 314, 315 (1969) ; Bruton v. United States, 391 U.S. 123, 135-37 (1968); Pointer v. Texas, 380 U.S. 400, 405 (1965) ; Mattox v. United States, 156 U.S. 237, 242-43 (1895). 1976] RIGHT TO DEFEND 789 PowelFs opinion does not discuss any of these problems. ^^' Rather, the opinion focuses on the evidentiary futihty of the 'Voucher" rule and virtually ignores constitutional problems.^^® Significantly, Justice Pov^eirs discussion of the "voucher" rule problem concludes with the observation that: "The Voucher' rule, as applied in this case plainly interfered with Chambers' right to defend against the State's charges."^''' Thus, despite Justice Powell's partial reliance on a sixth amendment incorporation approach, the over- riding theme of the Chambers opinion is the right to present a defense. Justice Powell's discussion of the exclusion of McDonald's prior confessions to Harden, Turner, and Gates also focuses more ' 367 ' It can hardly be disputed that McDonald's testimony was in fact seriously adverse to Chambers. The availability of the right to con- front and cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the State. We reject the notion that a right of such substance in the criminal process may be governed by that technicality [the "voucher" rule] or by any narrow and unrealistic definition of the word "against." 410 U.S. at 297-98 (emphasis added). Justice Powell's response to this argu- ment based on the language of the confrontation clause obviously poses a significant analytical problem in the context of the Chambers case. While it is quite true that McDonald's repudiation of his confession and his proffered alibi were seriously adverse to Chamber's efforts to accuse him of the murder, McDonald did not give any "damaging testimony against the ac- cused," id. at 298, but only thwarted Chambers' efforts to point the finger of guilt in McDonald's direction. Thus, Justice Powell's explanation as to why the confrontation clause applied to this case fails to directly address the problem. ^*°Justice Powell extensively criticized the "voucher" rule, which pix)- hibits the party calling a witness from cross-examining or impeaching that witness. 410 U.S. at 296-98. Noting that the rule is a holdover from trial by compurgation, Justice Powell argued that it has no place in the modern crim- inal trial since "defendants are rarely able to select their witnesses: they must take them where they find them." Id. at 296. Thus, he concluded that the "voucher" rule has no place in modern criminal trials. How or why these considerations raise constitutional, as opposed to evidentiary, concerns is unclear from his opinion. Indeed, if his attack on the "voucher" rule is not dicta, it might be read as holding that the accused always has the right under the confrontation clause to cross-examine or impeach his own witnesses when they give any adverse testimony. One doubts seriously, however, whether Justice Powell had such a sweeping holding in mind when he discussed the utility of the "voucher" rule. Indeed, it may be the potentially broad sweep of his comments on the "voucher" rule which led him to limit his holding as follows: "We need not decide, however, whether this error [the application of the "voucher" rule] alone would occasion reversal since Chambers' claimed de- nial of due process rests on the ultimate impact of that error when viewed in conjunction with the trial court's refusal to permit him to call other wit- nesses." Id. at 298. 3*9M at 298. 790 INDIANA LAW REVIEW [Vol 9:711 attention on evidentiary principles than on constitutional doctrine. Thus, he stressed the various indicia of reliability and trustworthi- ness for McDonald's prior confessions found in the evidence in Chambers. Much of the thrust of the opinion on this issue seems to be an attack on the evidentiary assumptions and policies under- lying the declaration against penal interest rule rather than an analysis of a constitutional issue.''° Thus, reliability seemed to take precedence over fairness in Justice PowelFs analysis of the issue. Yet, he rested his decision regarding the exclusion of Mc- Donald's prior confession solely on a due process right to defend analysis. Thus, Justice Powell's opinion contains a ringing en- dorsement of the right to defend : Few rights are more fundamental than that of an accused to present witnesses in his own defense. . . . The ^^°While noting that most states and the federal courts have generally excluded declarations against penal interest as hearsay, Justice Powell argued that the reasons for this exclusion had no conceivable application to the Chambers case. Id. at 299-301. He assumed that the rule is predicated on the evidentiary assumption that such declarations may be either false or may lead to the presentation of perjured testimony to the jury. Id. at 299-300. Despite the fact that this evidentiary rule generally requires exclusion irre- spective of other indicia of reliability, Justice Powell seemingly attacked the rule by arguing that in this case the circumstances provided three separate indicia of the reliability of McDonald's confession: (1) the excluded confes- sions were made spontaneously to friends shortly after the murder; (2) the confessions were corroborated by other evidence in the case, including the other confessions, McDonald's prior ownership of a .22-caliber weapon, and his purchase of a similar weapon after the murder; and (3) the confes- sions were clearly self-incriminatory and against McDonald's interest and McDonald had nothing to gain from such disclosures. Finally, McDonald was present at trial and subject to cross-examination. Id. at 300-01. Justice Powell purported to distinguish the prior Mississippi declaration against penal in- terest case, Brown v. State, 99 Miss. 719, 55 So. 961 (1911), as well as Don- nelly V. United States, 288 U.S. 243 (1913), which similarly required exclu- sion. 410 U.S. at 301 & n.21. Justice Powell's analysis of reliability would seem, however, more appropriate to an evidentiary analysis than a constitu- tional one. Brown and Donnelly were decided on evidentiary grounds, and there was, accordingly, no good reason to distinguish them if Chambers was being decided on due process grounds. Yet, Justice Powell's opinion appears to confuse and interweave these analytically separate issues; therefore, the holding is far from clear. That Justice Powell's discussion of evidentiary reliability had some im- pact is evidenced by some lower court cases which, while not reflecting a uni- form trend, have limited the application of Chambers to cases in which the declaration against penal interest or other hearsay evidence had some extrinsic indicia of reliability such as corroboration. See, e.g., United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974); People v. Craven, 54 111. 2d 419, 299 N.E.2d 1 (1973); People v. Hanks, 17 HI. App. 3d 633, 307 N.E.2d 638 (1974); Ragler V. SUte, 18 Md. App. 671, 308 A.2d 401 (1973); State v. Higginbotham, 298 Minn. 1, 212 N.W.2d 881 (1973). 1976] RIGHT TO DEFEND 791 testimony rejected by the trial court here bore persua- sive assurances of trustworthiness and thus was well within the basic rationale of the exception for declara- tions against interest. That testimony also was critical to Chambers' defense. In these circumstances, where con- stitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice.^^' Having taken a giant constitutional step in applying the right to defend to the Chambers case, Justice Powell concluded his opinion for the Court by retrenching: In reaching this judgment, we establish no new prin- ciples of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their ovm criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Cham- bers of a fair trial.^''^ While Justice Powell was clearly right insofar as he purported to suggest that the right to defend was not a new principle of constitutional law, he was clearly wrong insofar as he purported to suggest that Chambers did not break new constitutional ground on any front. First, Chambers, together with Webb v. Texas,^^^ rested on due process grounds, rather than on an incorporation of one of the specific guarantees of the fifth or sixth amend- ments. Second, Chambers applied the right to defend for the first time to a case involving only partial exclusion of the defense testi- mony^'''^ and the partial exclusion of testimony of particular de- fense witnesses who were allowed to present some evidence re- garding other matters (i.e. the partial exclusion of Berkley Turner's testimony and the refusal to permit the cross-examination and impeachment of McDonald).''^ Finally, since McDonald's written and signed confession was submitted to the jury, C/iam- bers represents the first case in which the right to defend has been applied to arguably cumulative, albeit critical, defense testi- ^^'410 U.S. at 302 (citations omitted). 372/c?. at 302-03. ^^^409 U.S. 95 (1972). ""^^Compare Taylor v. Hayes, 418 U.S. 488 (1974); Webb v. Texas, 409 U.S. 95 (1972) ; Groppi v. Leslie, 404 U.S. 496 (1972) ; Jenkins v. McKeithen, 395 U.S. 411 (1969) ; In re Oliver, 333 U.S. 257 (1948) ; Cooke v. United States, 267 U.S. 517 (1925). ^^^Compare Brooks v. Tennessee, 406 U.S. 605 (1972); Washington v. Texas, 388 U.S. 14 (1967); Ferguson v. Georgia, 365 U.S. 570 (1961). 792 INDIANA LAW REVIEW [Vol. 9:711 mony. Thus, in Chambers the Court clearly did break new con- stitutional ground.^ ^* While new constitutional ground was broken in Chambers, the structure destined to be built on this new foundation is not clear.' ' Unfortunately, although the Court clearly relied on the right to defend, the Chambers opinion yields no blueprint as to how the doctrine is to be applied. However, despite the analytic vagueness of the Chambers opinion, its holding is certainly a ringing endorsement of the right to defend.^^® Thus, the Supreme Court cases clearly hold that a right to present a defense is constitutionally protected. These cases further hold that such a guarantee somehow controls even partial ex- clusions of defense testimony or evidence. Accordingly, the right to defend has important implications for state evidentiary and procedural rulings. However, the Supreme Court cases say little more. The constitutional basis of the right to defend is unclear, since some cases have grounded the right on the compulsory process clause,^^' the fifth and fourteenth amendment due process ^^*Justice Rehnquist seemingly recognized that Chambers was clearly not a mere application of older principles of law. His lone dissent protests the "further constitutionrJization of the intricacies of the common law of evi- dence." 410 U.S. at 308. Justice Rehnquist rested his dissent, however, on the ground that the constitutional issue in question was not properly raised in the Mississippi courts. Id. at 308-14. Justice White wrote a concurring opinion, disagreeing with Justice Rehnquist's view that the constitutional issue was not properly raised for review. Id. at 303-08. ^^^See, e.g., Trial Manual 3 for the Defense of Criminal Cases § 410-A (Amer. College of Trial Lawyers & ALT-ABA Joint Comm. on Continuing Legal Educ. 1974). ^''^Since Chambers* trial was found constitutionally deficient despite the fact that one of McDonald's prior confessions was submitted to the jury and Chambers was partially allowed to attack its repudiation, the Chambers hold- ing may well have sweeping implications. While the Court suggested that the excluded testimony was "critical to Chambers' defense," 410 U.S. at 302, any potential distinction between "important" defense evidence and "critical" defense evidence is certainly not evident on the facts of the Chambers case. Since Chambers the Supreme Court has had little opportunity to return to the right to defend analysis. Although a few subsequent cases have con- tained implications for the right to present a defense, the cases v/ere on their facts easily decided under express guarantees of the fifth and sixth amend- ments, thereby obviating resort to a more generalized right to defend analysis. For example, in Davis v. Alaska, 415 U.S. 308 (1974), the Court held that the confrontation clause was violated when the State of Alaska refused on grounds of the traditional secrecy of juvenile proceedings to permit the ac- cused to cross-examine a juvenile prosecution witness about his prior juvenile record. While discrediting prosecution witnesses is obviously often an im- portant part of presenting a defense, such problems are commonly and readily analyzed under the confrontation clause. 3795ce, e.g., Cool v. United States, 409 U.S. 100 (1972); Washington v. Texas, 388 U.S. 14 (1967). 1976] RIGHT TO DEFEND 793 clauses,^®° the privilege against self-incrimination/®^ the right to counsel,^®^ and the right to confront witnesses.^" The Supreme Court cases also leave undefined the analytic test for right to de- fend cases. Surely not all evidentiary and procedural rules or rul- ings which in any way impede the defense are unconstitutional, but the distinction between constitutional obstacles and unconstitution- al obstructions is wholly unclear from the cases. Therefore, the remainder of this Article will attempt to provide an analytic structure for the right to present a defense and suggest certain areas in the criminal trial for which the right has important implications. V. Beyond Chambers : In Search of a Standard of Review A. In Search of a Constitutional Source While the Court has analyzed right to defend cases under the fifth, sixth and fourteenth amendments,^®^ the bedrock for the constitutionally protected right to present a defense would seem to lie in the spirit and history of the Bill of Rights itself. As discussed above, the protections afforded the criminally accused in the Bill of Rights were designed to remove most or all of the obstacles which existed in 1791 to the presentation of the accused's defense.^" Each of the specific guarantees of the sixth amend- ment were, thus, designed to cure certain specific obstacles previ- ously imposed on the accused by common law procedure. There- fore, grounding a general right to defend on any of the specific guarantees of the fifth or sixth amendments imposes a significant strain on the language and history of each of those guarantees. Accordingly, the right to present a defense should not, as some commentators have recently suggested, be grounded solely on the sixth amendment's right to compulsory process.'®'' Since the 26o^^gg^ ^g^^ Chambers v. Mississippi, 410 U.S. 284 (1973) ; Webb v. Texas, 409 U.S. 95 (1972) ; In re Oliver 333 U.S. 257 (1948). ^""'See, e.g., Brooks v. Tennessee, 406 U.S. 605 (1972). ^^^iSee, e.g., Brooks v. Tennessee, 406 U.S. 605 (1972) ; Ferguson v. Geor- gia, 365 U.S. 570 (1961) ; Gibbs v. Burke, 337 U.S. 773 (1949). ^^^See, e.g., Davis v. Alaska, 415 U.S. 308 (1974) ; Chambers v. Mississippi, 410 U.S. 284 (1973). ^^'^See notes 379-83 supra and accompanying text. ^^^See generally Westen, supra note 114. ^^^See id. at 127-31. Professor Westen's article on the compulsory process clause, while providing an excellent survey of right-to-defend cases and their history, attempts to analyze them as sixth amendment cases. The weakness in his analyses appears to be his willingness, not -wdthout sympathetic support from the Supreme Court, to bend the language and history of the sixth amend- ment beyond its intended purpose. As noted in sections I and II of this Article, the sixth amendment compulsory process clause was specifically designed to remedy the common law inability of the accused to subpoena his witnesses 7?4 INDIANA LAW REVIEW [Vol. 9:711 specific guarantees of the fifth and sixth amendments are de- signed to resolve specific problems of criminal procedure, it would seem more sensible to ground the right to defend, especially insofar as the right must address new obstacles to the accused not en- visioned by the Framers, on concepts more general and flexible than the narrov^ and specific guarantees of the fifth and sixth amendments. Two equally acceptable and constitutionally adequate corner- stones for the right to defend should be evident from the fore- going discussion. First, the history of the development of criminal procedure and of the Bill of Rights certainly supports an argu- ment that the overall spirit and intent of the fifth and sixth amendments, when read as a whole, protect a right to defend. Insofar as the fifth and sixth amendments were drafted to cure all or most of the then extant obstacles to presenting a defense, any organic reading of the Constitution as a growing and evolving document^ ®^ should require that the spirit of these amend- ments also protect the accused against new obstacles created after the amendments were drafted. Under this view, the right to defend would be protected as a "penumbra"^®® of the fifth and sixth amendments. Second, for those less inclined toward a penumbral view of the Bill of Rights, the broad and flexible building-blocks of the due process clauses of the fifth and four- teenth amendments may provide the requisite foundation. In- deed, Wehh V. Texas^^'* and Chambers v. Mississippi^'^^ have al- ready adopted this due process approach to the problem. While the penumbral approach would seem supported by historical analysis, it is more probable that the present majority of the Supreme Court, insofar as it desires to continue protecting which had the effect of leaving the accused without a defense if the defense witness refused to come to court. Indeed, Westen notes that Madison, in drafting the sixth amendment compulsory process clause, rejected Virginia Recommendation No. 8 for the text of the sixth amendment. Id. at 97 & n.ll3. (Virginia Recommendation No. 8 is set forth in full in 2 Schwartz, supra note 53, at 841, and is, as Westen notes, patterned after the Virginia Declaration of Rights). Similarly, the sparse legislative history of the sixth amendment indicates that the compulsory process clause was only intended to secure the right to subpoena—not a more general right to present exculpatory testimony. See section II supra. Thus, to argue as Westen does, that the sixth amend- ment's compulsory process clause should function as a right to defend ignores this history and the purpose of the guarantee. ^«^Justice Holmes' opinion in Missouri v. Holland, 252 U.S. 416 (1920), is a good example of organic reading of the Constitution. See id, at 433-34. '^^See Griswold v. Connecticut, 381 U.S. 479, 484 (1956) ("specific guar- antees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.")- ^«9409 U.S. 95 (1972). 3^410 U.S. 284 (1973). 1976] RIGHT TO DEFEND 795 the right to defend, will turn toward the due process clause.''' Increasingly, the Burger Court majority has abandoned sole reliance on the incorporationist approach to the fourteenth amend- ment in favor of a due process clause analysis. At least Justice Powell has already indicated that he is disenchanted with analyzing state criminal procedure cases solely from an incorporationist per- spective.^'^ Moreover, some recent decisions indicate that the Burger Court may resurrect a "fundamental fairness" analysis of the fourteenth amendment due process clause. In Chaffin v. Stynchcomhey''^^ Justice Powell, writing for the Court, said that the clause protects "fundamental notions of fairness."^''^ And, in Peters v, Kiff,^''^ the Court, in holding that white defendants have a due process right to be tried by a jury free of racial discrimina- tion, quoted prior cases and said, "A fair trial in a fair tribunal is a basic requirement of due process.""* Although it is unlikely that the Court will totally reject the incorporation doctrine in the near future, it does appear that the Court is moving away from that doctrine as the sole or primary analytic approach for defining the scope of the due process clause of the fourteenth amendment."^ Increasingly, the Court might be expected to rely on the elastic concepts of the due process clause, and the resurrection of the due process clause as an independent mode of analysis of problems of criminal procedure may result in a further delineation and expansion of the right to present a defense. B, In Search of a Constitutional Test While the Supreme Court's prior right to defend cases provide some suggestions regarding the source of this constitutional right, the cases almost totally fail to provide any rationale or consistent test to be applied in such cases. Although it might be suggested that the right to defend cases discussed in the prior section are the Court's idiosyncratic reactions to manifest injustices,"® such a view neither comports well with the role of the Supreme Court nor accounts for the rather consistent pattern of protection of this right afforded by the Court since it decided Fergiison v, Georgia399 ^'^'See, e.g., Gagnon v. Scarpelli, 411 U.S. 778 (1973) ; Chambers v. Missis- sippi, 410 U.S. 284 (1973) ; Webb v. Texas, 409 U.S. 95 (1972) ; Morrissey v. Brewer, 408 U.S. 471 (1972). "^See Johnson v. Louisiana, 406 U.S. 356, 375-80 (1972) (Powell, J., concurring). 3'M12 U.S. 17 (1973). 394/d. at 25. See also United States v. Marion, 404 U.S. 307, 324 (1971). "M07 U.S. 493 (1972). ^'*/d. at 501, quoting In re Murchison, 349 U.S. 133, 136 (1955). 397See also Ham v. South Carolina, 409 U.S. 524 (1973). ^9«C/. J. Wilkinson, Serving Justice 23-27 (1974). ^''365 U.S. 570 (1961). 796 INDIANA LAW REVIEW [Vol. 9:711 in 1961. Presumably the United States Supreme Court does not and should not sit simply as a court of error. Rather, it is axiomatic that the Court takes constitutional cases to review important issues of constitutional doctrine.'^' Given the fact that the Court has re- peatedly taken and reviewed cases raising right to defend issues, it appears that the Court has viewed these cases as raising im- portant issues of constitutional doctrine. Unfortunately, despite the Court's efforts over the last decade and a half, the contours of that doctrine remain enigmatic. The Court's failure to develop an analytic test in this area stems from a failure or unwillingness to recognize the way in which constitutional issues of fairness to the accused become in- volved in almost all evidentiary and procedural rules and rulings. Perhaps fearing the very real floodgate potential of such a recog- nition, the Court's policy seems to have been to limit many of its right to defend rulings to the narrowest possible construction. Thus, after stating broad right to defend and compulsory process prin- ciples in Washington v, Texas,"^^^ the Court sought to limit the implications of its holding by suggesting that it did not apply to traditional testimonial privileges or state rules of evidentiary in- competency due to infirmity or incapacity.'*°^ Similarly, in C/iam- &e?'s V. Mississippi,'^^^ the Court, in a rather incredible statement, said that in reaching its judgment it established no new principles of constitutional law.^°^ These efforts at judicial self-limitation, while understandable in view of the possible repercussions of the Court's decisions, are unpersuasive. In reality, a common thread binds together such seemingly disparate cases as Washington, Fer- guson V. Georgia,^°^ Brooks v, Tennessee,'^^^ and Chambers. That thread is the right to present a defense. The fact that the Court has reviewed these cases and found a constitutional deprivation in each one supports the view that evidentiary or procedural rules and rulings affecting the presentation of the defense case are of a constitutional dimension. However, the right to defend cases de- cided by the Supreme Court all arose from the most outrageous violations of this guarantee. Evidentiary rules tend to focus attention on issues of eviden- tiary reliability, and procedural rules tend to focus on issues of judicial economy, regularization, and even procedural reci- "^"^C/. U.S. Sup. Ct. R. 19. See also Donnelly v. DeCristoforo, 416 U.S. 637, 648 (1974) (Stewart, J., concurring); id at 651-652 (Douglas, J., dis- senting) . ^^'388 U.S. 14 (1967). ^°2/d. at 23 n.21. "^MIO U.S. 284 (1973). ^°VcZ. at 302. ^^^365 U.S. 570 (1961). ^^M06 U.S. 605 (1972). 1976] RIGHT TO DEFEND 797 procity. The constitutional dimension to the right to present a de- fense is designed to focus judicial attention on the fairness of the rule or ruling to the accused. Unfortunately, analyzing problems solely at an evidentiary or procedural level commonly causes courts to lose sight of the rather valuable perspective of fairness gleaned from considering the right to defend as a separate issue. Thus, the right to defend issues lurking in any procedural or evidentiary ruling adversely affecting the accused's ability to present a defense are easily ignored by courts focusing on evidentiary or procedural rules. Although recognition of the right to present a defense has far-reaching implications, it need not create a flood of litigation or cause a revolutionary change in criminal procedure. The flood of cases would be better dammed by clearly embracing the right to defend and announcing a clear test for its application than by deciding each case on seemingly sui generis principles or by seek- ing through unconvincing disclaimers to limit the impact of a decision. The latter approach, insofar as it fails to yield any guid- ing principles, seemingly encourages appeals seeking a sui generis ruling. Thus, the present lack of an analytic framework for the right to defend results in an uncertainty, and possibly a skepti- cism, about the right.^°^ The effect of this uncertainty on the lower courts results in a requirement that all such cases be finally re- solved only by the Supreme Court. Thus, a forthright demarcation of the right to present a defense would also have the advantage of removing most of this burden from the Supreme Court and placing it in the state and lower federal courts where it primarily belongs. Like many other constitutional rights, the guarantees of fair- ness implicit in the right to defend must be accommodated with other governmental interests, many of which find expression in the procedural or evidentiary rules which burden the accused's ability to defend. Therefore, the key to developing a coherent consti- tutional approach to the right to defend is the balancing of the constitutional values of fairness protected by the right to defend against the governmental interests expressed in the procedural or evidentiary rulings. The application of a balancing test would pro- tect governmental interests in rules of evidence or procedure and would compel constitutional intervention only when the govern- mental interest does not outweigh the accused's right to present a complete defense. Thus, the accused clearly could not invoke the right to defend in order to prolong his trial by offering wholly repetitious, cumulative, or irrelevant evidence.''^® On the other ^""^See, e.g., Maness v. Wainwright, 512 F.2d 88 (5th Cir. 1975) ; People V. Duckett, 56 III. 2d 432, 308 N.E.2d 590 (1974) ; Ragler v. State, 18 Md. App. 671, 308 A.2d 401 (1973) ; State v. Romero, 86 N.M. 674, 526 P.2d 816 (1974). '""^Cf. Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The accused, in a re- 798 INDIANA LAW REVIEW [Vol. 9:711 hand, Chambers v. Mississippi^^'' makes it clear that a court could not use a mechanistic application of rules of evidence to preclude the introduction of important defense evidence. The concept of balancing an accused's federal constitutional rights against a state's procedural interests is certainly not novel. In Henry v. Mississippi/'" the Court adopted a similar balancing approach in deciding whether state procedural default barred re- view of federal constitutional issues relating to criminal procedure ; and, as noted above, Brooks v. Tennessee"^'' also sugge-sted a balanc- ing approach for right to defend cases.^'^ Thus, it appears that some sort of balancing test can best accommodate the competing interests of constitutional fairness, on the one hand, and eviden- tiary reliability and procedural regularity, on the other hand. How- ever, the concept of a balancing test merely begins the development of an analytic framework for the right to defend. A perspective for weighing the interests on either side of the scale is still required. Since the Court has said that the right to defend and to fully present a defense is a fundamental right protected, inter alia^ by the fourteenth amendment due process clause,"*'^ under traditional principles the most appropriate way to analyze the governmental interest in evidentiary or procedural rules would be the application of a compelling or legitimate interest test."^'^ Brooks clearly adopts trial for forcible robbery, had given pursuant to Georgia procedure an un- sworn statement in which he gave "an emotional discussion of his family back- ground, an account of his religious affiliation, job history, and previous physi- cal injuries, and a rendition of several religious poems and songs he had written." Id. at 19. Apparently the jury either failed to appreciate his poetry or did not like his singing voice since they sentenced him to life imprisonment, a harsher result than the original sentence. The accused then sought a writ of habeas corpus on the ground that the higher sentence imposed at the second trial violated due process. Id. at 21. The Supreme Court held that the four- teenth amendment was not violated because the second sentence was not the product of vindictiveness. Id. at 23-28. ^°'410 U.S. 284 (1973). ^'°379 U.S. 443, 447-49 (1965). Specifically, the Court said: [A] litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on com- pliance with its procedural rule serves a legitimate state interest. Jn every case we must inquire whether the enforcement of a procedural forfeiture serves such a state interest. If it does not, the state proce- dural rule ought not be permitted to bar vindication of important federal rights. Id. at 447-48 (emphasis added). ^"406 U.S. 606 (1972). ''^^See note 323 supra and accompanjring text. *'^See Washington v. Texas, 388 U.S. 14 (1967). ^'*See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) ; Shapiro v. Thompson, 394 U.S. 618 (1969); United States v. Jackson, 390 U.S. 570, 582-83 (1968); Griffin v. Illinois, 351 U.S. 12 (1956). See generally Gunther, The Supreme Court, 1971 Term, Foreward: In Search of Evolving Doctrine on a Changing 1976] RIGHT TO DEFEND 799 such a standard/'^ and at least one commentator has suggested that the opinion in Washington v. Texas'^''' implies such an approach/" The compelling or legitimate governmental interest analysis applicable to right to present a defense cases must differ in some respects from the compelling governmental interest test as it has sometimes been applied in other contexts. Clearly, the compelling interest analysis involves a balancing process. The interest pro- tected by the accused's constitutional right must be weighed against the governmental interest advanced to infringe that right. Although the test would seem to require a weighing of the interests on both sides of the scale, cases applying the compelling interest test to situations other than the right to defend have commonly given a presumptive weight to the constitutional side of the equation and have evaluated only the governmental interest,""® thereby obscuring the balancing process at work. By contrast, the analysis of any right to defend case necessarily requires a weighing of both sides of the scale. Although the compelling interest test might suggest that any obstruction of the accused's opportunity to present a defense bears a heavy burden of justification, the burden must be applied flexibly, depending on how significantly the obstruction imposed on the accused undercuts the ability to present a defense. Clearly, the exclusion of all defense witnesses is an obstruction of a wholly dif- ferent magnitude than the exclusion of cumulative or irrelevant evi- dence. Thus, the weighing of the importance of the excluded evi- dence to the accused in the context of the defense is a vital element to the analysis of any right to defend case. Indeed, the necessity of making such an evaluation was implied in Cho.mhers in which the Court stressed that the excluded confessions were ''critical to Chambers' defense'""'' and in Washington in which the Court stressed that the excluded evidence was ''vital to the defense."^^° ' An evaluation of the importance of the excluded testimony to the accused can, of course, only be made by evaluating its role in the total context of both the accused's defense and the case as a Court:A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972) ; Westen, supra note 114, at 116 n.201; Note, Preclusion Sanction, supra note 307, at 1353-61. '^^^See text accompanying note 412 supra. ^^*388 U.S. 14 (1967). '''''See Westen, supra note 114, at 115-16 & nn.200-01. ^'^See, e.g., Brooks v. Tennessee, 406 U.S. 605 (1972) ; Shapiro v. Thomp- son, 394 U.S. 618, 633-38 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). But see, San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 97-130 (1972) (Marshall, J., dissenting). ^''410 U.S. at 302 (emphasis added). See aUo People v. Hanks, 17 HI. App. 3d 633, 307 N.E.2d 638 (1974) (part of Chambers test requires that evi- dence be critical to the defense and have a tendency to prove innocence). 420388 U.S. at 16 (emphasis added). 800 INDIANA LAW REVIEW [Vol. 9:711 whole. Thus, this right to defend analysis almost necessarily com- pels the adoption of some type of ''totality of the circumstances** approach which the Supreme Court has recently used so fre- quently."*'' The importance of the excluded evidence must be ana- lyzed in light of its importance in the total defense picture and in light of the full facts of the case. However, adoption of a totality of the circumstances test in reviewing the importance of excluded defense evidence does not necessarily mean, as one commentator has suggested, that the case must be decided by "lumping all of the facts together without identifying issues of particular importance or giving particular weight to the interests involved."^^^ Rather, the totality of the circumstances test suggested here furthers an exploration of the interests involved by requiring an analysis of the importance of the excluded evidence to the accused in the context of the case under review. Thus, such a due process analysis will not obstruct the protection of the right to defend.''^^ Assuming that the defense is found to be significantly ob- structed by evidentiary or procedural rulings, further inquiry must still be made to determine whether some compelling governmental interest outweighs the significant unfairness resulting from par- tially denying the accused his day in court. As the name of the test suggests, such a compelling governmental interest would neces- sarily have to be of great magnitude. Presumably, as part of the analysis of the governmental interest advanced, some inquiry must be made as to whether the evidentiary or procedural objectives justifying the infringement of the accused's constitutional rights might not be furthered by means which less drastically undermine the accused's ability to present a defense. '^^'^ To the extent that less drastic alternatives are available, the governmental interest in- fringing on the right to present a defense is less compelling. From the foregoing it is obvious that a balancing or accommo- dation of governmental interests in reliability and judicial regular- ^""'See, e.g., Schneckloth v. Bu3tamonte, 412 U.S. 218 (1973) ; Neil v. Big- gers, 409 U.S. 188 (1972); Barker v. Wingo, 407 U.S. 514 (1972). ''^^Westen, supra note 114, at 130. ^^^C/. United States v. Thomas, 488 F.2d 334 (6th Cir. 1973) ; United States V. Torres, 477 F.2d 922 (9th Cir. 1973) ; Howard v. State, 303 A.2d 653 (Del. 1973) ; State v. Jamison, 64 N.J. 363, 316 A.2d 439 (1974); People V, Sweeney, 43 App. Div. 2d 564, 349 N.Y.S.2d 63 (1973) ; Commonwealth v. Jennings, 225 Pa. Super. 489, 311 A.2d 720 (1973) ; Commonwealth v. Hackett, 225 Pa. Super. 22, 307 A.2d 334 (1973). All of the foregoing cases find viola- tions of the Webb-Chambers rules despite the reliance in Webb and Chambers on elastic due process principles and totality of circumstances analyses. Com- pare Westen, supra note 114, at 130 n.288 (suggesting that the due process clause totality of circumstances test encourages decisions limited explidtly to their facts without precedential impact). ^2^C/. United States v. Jackson, 390 U.S. 570 (1968) ; Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). 1976] RIGHT TO DEFEND 801 ization with the constitutional interests in fairness to the accused protected by the right to defend must be made in each case. Per se rules of previous cases decided under the guise of the specific guar- antees of the fifth and sixth amendments simply will not facilitate such an accommodation/" Rather, this accommodation should be made by using an elastic due process analysis of the type advanced here. By requiring a compelling state interest to outweigh the ac- cused's constitutional interest in fairness, the right to present a defense is given appropriate protection. Moreover, by engaging in a case-by-case balancing, the accommodation of these sometimes competing interests can be facilitated. Of course, such an analysis of criminal evidentiary and procedural problems has important ramifications for various criminal trial practices and some of these implications are explored in the next section. Before turning to such prognostication, however, a brief analysis should be made of two other constitutional doctrines which affect the analysis of right to defend cases—waiver and harmless error. . C, Waiver and Harmless Error The waiver doctrine has a limited, but important, application to the right to present a defense. In situations in which evidence is excluded on evidentiary grounds, it is hard to imagine how the waiver doctrines might apply. Since the accused has chosen to offer the excluded evidence, it is difficult to argue waiver unless the ex- clusion was based on a failure to preserve the issue for review by making an offer of proof.^^^ In areas of procedural default, how- ever, the waiver doctrines have very real applications which will be discussed in the next section. If defense evidence is excluded be- cause of procedural default,^''^ the default should be equivalent to a waiver of federal constitutional rights if the exclusion of vital defense evidence is to be upheld. The argument that an accused's procedural default alone constitutes a waiver of federal constitutional right conflicts signifi- cantly with the constitutional waiver doctrines. The applicable stan- dard required for any waiver of federal constitutional rights af- fecting the fairness of a criminal triar" is "an intentional relin- ^"^^Contra Westen, supra note 114. ^2*C/. McCORMiCK, 8upr