Document Type

Book Chapter

Publication Date

1986

Abstract

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses ‘‘in his favor’’ turns on which of the parties—the prosecution or the defense—offers the witness’s statements in evidence as a formal part of its case. The confrontation clause establishes the government’s obligations regarding the production and examination of witnesses whose statements the prosecution puts into evidence either in its case in chief or in rebuttal. The compulsory process clause establishes the government’s obligations regarding the production and examination of witnesses whose statements the defendant seeks to put into evidence in his respective case.

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