Compelled testimony constitutes one of the government’s primary sources of information.  The tension between the privilege against self-incrimination and the governmental power to compel testimony is eased to some extent by immunity statutes.  Immunity statutes accord a witness sufficient immunity from prosecution to accommodate the imperatives of the Fifth Amendment and at the same time allows the government to compel testimony that may be essential to effective prosecution of criminal offenses[i].

In order to be testimonial, the communication of the accused itself must explicitly or implicitly relate a factual assertion or disclose information.  Only then is a person compelled to be a witness against himself/herself[ii].  However, unless some attempt is made to secure a communication upon which reliance is to be placed, the demand made upon an accused will not amount to testimony[iii].

It is to be noted that a court of justice possess an inherent power to compel the attendance of witnesses in proceedings before it within the sphere of its jurisdiction.  In other words, courts have the inherent power to compel the attendance and nonprivileged testimony of witnesses.  Generally, personal convenience or preference of a witness is considered to be immaterial.  Therefore, any person can be compelled to give any evidence whether verbal or documentary[iv].

Generally, evidence compelled under an order requiring testimony notwithstanding a privilege against self-incrimination, or any information directly or indirectly derived from such evidence, may not be used against the person compelled to testify in any criminal case[v].  It is to be noted that requiring a defendant in a criminal case to testify violates his/her constitutional privilege against self-incrimination.  It is likewise a violation of this privilege to compel a defendant to testify in a contempt proceeding[vi].

The Sixth Amendment guarantees the right to compulsory process to obtain witnesses[vii].  It is to be noted that if a defendant’s Sixth Amendment rights and a witness’s Fifth Amendment rights conflict[viii], the Sixth Amendment right must yield.  This is not because the Sixth Amendment right to compulsory process is in any way a second class right.  For a Fifth Amendment privilege to dominate, the need for asserting the right against self-incrimination must be shown to be well founded and essential[ix].

The courts’ insistence upon the attendance of persons called as witnesses will not constitute an unlawful taking of property or an impairment of any other constitutional rights.  It is to be noted that the inalienable rights protected by some state statutes do not include a right to refuse to be a witness in a judicial proceedings within the state. A restriction on the inalienable rights is the obligation to attend and give testimony[x].

It is to be noted that a trial court has discretion in exercising its power to secure the attendance of witnesses.  However, such discretion must be exercised in a manner consistent with the constitutional rights of the defendant.  The Sixth Amendment’s compulsory process clause also guarantees the right of an accused to the government’s assistance in compelling the attendance of favorable witnesses at trial[xi].

Further, the compulsory process clause is not violated each time a defendant is deprived of a witness’s testimony, but only when the witness’s testimony would have been favorable and material and not merely cumulative to the testimony of available witnesses[xii].

[i] State v. Vallejos, 118 N.M. 572 (N.M. 1994).

[ii] Doe v. United States, 487 U.S. 201 (U.S. 1988).

[iii] Id.

[iv] Emerson Elec. Co. v. Superior Court, 16 Cal. 4th 1101 (Cal. 1997).

[v] State v. Boeglin, 1983 N.M. App. Lexis 752 (N.M. Ct. App. July 28, 1983).

[vi] Killpatrick v. Superior Court of Los Angeles County, 153 Cal. App. 2d 146 (Cal. App. 2d Dist. 1957).

[vii] State v. Ramsey, 99 Idaho 1 (Idaho 1978).

[viii] Culkin v. Purkett, 45 F.3d 1229 (8th Cir. Mo. 1995).

[ix] State v. Ramsey, 99 Idaho 1 (Idaho 1978).

[x] Vannier v. Superior Court, 32 Cal. 3d 163 (Cal. 1982).

[xi] Harris v. United States, 834 A.2d 106 (D.C. 2003).

[xii] Id.