Well in advance of petitioner's state court trial for attempted
murder, the prosecutor filed a discovery motion requesting a list
of defense witnesses. Petitioner's answer failed to list one
Wormley, as did his amended answer, submitted and accepted on the
first day of trial, identifying two witnesses who were never called
to testify. On the second day of trial, after the prosecution's two
principal witnesses had completed their testimony, petitioner's
counsel made an oral motion to further amend the discovery answer
to include Wormley. Counsel explained that Wormley had probably
seen the entire incident that led to the indictment, and that,
although petitioner had told counsel about Wormley earlier, counsel
had been unable to locate Wormley. At a subsequent voir
examination, Wormley testified that he had not been a
witness to the incident itself, but had earlier seen the victim and
his brother carrying guns and threatening petitioner, and that he
just happened to run into petitioner and warned him to watch out.
On cross-examination, Wormley acknowledged that he had first met
petitioner over two years after the incident in question, and that
defense counsel had visited him at his home during the week before
the trial began. As a sanction for the failure to identify Wormley
in the discovery answer, the trial judge refused to allow Wormley
to testify before the jury. The judge explained that petitioner's
counsel had committed a blatant and willful violation of the
discovery rules, and that the judge doubted the veracity of
Wormley's testimony. The Illinois Appellate Court affirmed
1. The Compulsory Process Clause of the Sixth Amendment may, in
an appropriate case, be violated by the imposition of a discovery
sanction that entirely excludes the testimony of a material defense
witness. The Clause is not merely a guarantee that the accused
shall have the power to subpoena witnesses, but confers on the
accused the fundamental right to present witnesses in his own
defense. Pp. 484 U. S.
2. However, the Compulsory Process Clause does not create an
absolute bar to preclusion of the testimony of a defense witness as
a sanction for violating a discovery rule. Although a trial court
may not ignore the fundamental character of the defendant's right
to offer the testimony of witnesses in his favor, the mere
invocation of that right cannot automatically and invariably
outweigh countervailing public interests. If discovery
Page 484 U. S. 401
violations are willful and motivated by a desire to obtain a
tactical advantage or to conceal a plan to present fabricated
testimony, it would be entirely appropriate to exclude the
witnesses' testimony regardless of whether other, less drastic
sanctions might be available, adequate, and merited. Pp.
484 U. S.
3. The exclusion of Wormley's testimony did not constitute
constitutional error. Pp. 484 U. S.
(a) The fact that the voir dire
examination of Wormley
may have adequately protected the prosecution from prejudice
resulting from surprise does not render the imposition of the
preclusion sanction unnecessarily harsh. The record raises strong
inferences that petitioner's counsel was deliberately seeking a
tactical advantage in failing to list Wormley as a witness, and
that "witnesses [were] being found that really weren't there."
Thus, the case fits into the category of willful misconduct for
which the severe sanction of preclusion is justified in order to
protect the integrity of the judicial process. Pp. 484 U. S.
(b) It is not unfair to hold petitioner responsible for his
lawyer's misconduct. The lawyer necessarily has full authority to
manage the conduct of the trial, and the client must accept the
consequences of the lawyer's trial decisions. Pp. 484 U. S.
141 Ill.App.3d 839, 491 N.E.2d 3, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined, post,
p. 484 U. S. 419
BLACKMUN, J., filed a dissenting opinion, post,
JUSTICE STEVENS delivered the opinion of the Court.
As a sanction for failing to identify a defense witness in
response to a pretrial discovery request, an Illinois trial
Page 484 U. S. 402
judge refused to allow the undisclosed witness to testify. The
question presented is whether that refusal violated the
petitioner's constitutional right to obtain the testimony of
favorable witnesses. We hold that such a sanction is not absolutely
prohibited by the Compulsory Process Clause of the Sixth Amendment,
and find no constitutional error on the specific facts of this
case. [Footnote 1
A jury convicted petitioner in 1984 of attempting to murder Jack
Bridges in a street fight on the south side of Chicago on August 6,
1981. The conviction was supported by the testimony of Bridges, his
brother, and three other witnesses. They described a 20-minute
argument between Bridges and a young man named Derrick Travis, and
a violent encounter that occurred over an hour later between
several friends of Travis, including petitioner, on the one hand,
and Bridges, belatedly aided by his brother, on the other. The
incident was witnessed by 20 or 30 bystanders. It is undisputed
that at least three members of the group which included Travis and
petitioner were carrying pipes and clubs that they used to beat
Bridges. Prosecution witnesses also testified that petitioner had a
gun, that he shot Bridges in the back as he attempted to flee, and
that, after Bridges fell, petitioner pointed the gun at Bridges'
head, but the weapon misfired.
Two sisters, who are friends of petitioner, testified on his
behalf. In many respects, their version of the incident was
consistent with the prosecution's case, but they testified that it
was Bridges' brother, rather than petitioner, who possessed a
firearm, and that he had fired into the group, hitting
Page 484 U. S. 403
his brother by mistake. No other witnesses testified for the
Well in advance of trial, the prosecutor filed a discovery
motion requesting a list of defense witnesses. [Footnote 2
] In his original response, petitioner's
attorney identified the two sisters who later testified and two men
who did not testify. [Footnote
] On the first day of trial, defense counsel was allowed to
amend his answer by adding the names of Derrick Travis and a
Chicago police officer; neither of them actually testified.
On the second day of trial, after the prosecution's two
principal witnesses had completed their testimony, defense counsel
made an oral motion to amend his "Answer to Discovery" to include
two more witnesses, Alfred Wormley and Pam Berkhalter. In support
of the motion, counsel represented that he had just been informed
about them, and that they had probably seen the "entire incident."
Page 484 U. S. 404
In response to the court's inquiry about defendant's failure to
tell him about the two witnesses earlier, counsel acknowledged that
defendant had done so, but then represented that he had been unable
to locate Wormley. [Footnote 5
After noting that the witnesses' names could have been supplied
even if their addresses were unknown, the trial judge directed
counsel to bring them in the next day, at which time he would
decide whether they could testify. The judge indicated that he was
concerned about the possibility "that witnesses are being found
that really weren't there." [Footnote 6
The next morning, Wormley appeared in court with defense
counsel. [Footnote 7
further colloquy about the consequences of a violation of discovery
rules, counsel was permitted to make an offer of proof in the form
of Wormley's testimony outside the presence of the jury. It
developed that Wormley had not been a witness to the incident
itself. He testified that, prior to the incident, he saw Jack
Bridges and his brother with two guns in a blanket, that he heard
them say "they were after Ray [petitioner] and the other people,"
and that, on his way home, he "happened to run into Ray and them"
and warned them "to watch out because they got
Page 484 U. S. 405
weapons." [Footnote 8
cross-examination, Wormley acknowledged that he had first met
defendant "about four months ago" (i.e.,
over two years
after the incident). He also acknowledged that defense counsel had
visited him at his home on the Wednesday of the week before the
trial began. Thus, his testimony rather dramatically contradicted
defense counsel's representations to the trial court.
After hearing Wormley testify, the trial judge concluded that
the appropriate sanction for the discovery violation was to exclude
his testimony. The judge explained:
"THE COURT: All right, I am going to deny Wormley an opportunity
to testify here. He is not going to testify. I find this is a
] violation of the discovery rules, willful
violation of the rules. I also feel that defense attorneys have
been violating discovery in this courtroom in the last three or
four cases blatantly, and I am going to put a stop to it and this
is one way to do so."
"Further, for whatever value it is, because this is a jury
trial, I have a great deal of doubt in my mind as to the veracity
of this young man that testified as to whether he was an eyewitness
on the scene, sees guns that are wrapped up. He doesn't know Ray,
but he stops Ray."
"At any rate, Mr. Wormley is not going to testify, be a witness
in this courtroom."
Page 484 U. S. 406
The Illinois Appellate Court affirmed petitioner's conviction.
141 Ill.App.3d 839, 491 N.E.2d 3 (1986). It held that, when
"discovery rules are violated, the trial judge may exclude the
evidence which the violating party wishes to introduce," and
"[t]he decision of the severity of the sanction to impose on a
party who violates discovery rules rests within the sound
discretion of the trial court."
The court concluded that, in this case, "the trial court was
within its discretion in refusing to allow the additional witnesses
to testify." Id.
at 844-845, 491 N.E.2d at 7. The Illinois
Supreme Court denied leave to appeal, and we granted the petition
for certiorari, 479 U.S. 1063 (1987).
In this Court, petitioner makes two arguments. He first contends
that the Sixth Amendment bars a court from ever ordering the
preclusion of defense evidence as a sanction for violating a
discovery rule. Alternatively, he contends that, even if the right
to present witnesses is not absolute, on the facts of this case,
the preclusion of Wormley's testimony was constitutional error.
Before addressing these contentions, we consider the State's
argument that the Compulsory Process Clause of the Sixth Amendment
is merely a guarantee that the accused shall have the power to
subpoena witnesses, and simply does not apply to rulings on the
admissibility of evidence. [Footnote 9
Page 484 U. S. 407
In the State's view, no Compulsory Process Clause concerns are
even raised by authorizing preclusion as a discovery sanction, or
by the application of the Illinois rule in this case. The State's
argument is supported by the plain language of the Clause,
by the historical evidence that it was intended to
provide defendants with subpoena power that they lacked at common
law, [Footnote 10
] by some
scholarly comment, [Footnote
] and by a brief excerpt from the legislative history of the
Clause. [Footnote 12
have, however, consistently
Page 484 U. S. 408
given the Clause the broader reading reflected in
contemporaneous state constitutional provisions. [Footnote 13
As we noted just last Term,
"[o]ur cases establish, at a minimum, that criminal defendants
have the right to the government's assistance in compelling the
attendance of favorable witnesses at trial and the right to put
before a jury evidence that might influence the determination of
Pennsylvania v. Ritchie, 480 U. S.
, 480 U. S. 56
(1987). Few rights are more fundamental than that of an accused to
present witnesses in his own defense, see, e.g., Chambers v.
Mississippi, 410 U. S. 284
410 U. S. 302
(1973). Indeed, this right is an essential attribute of the
adversary system itself.
"We have elected to employ an adversary system of criminal
justice in which the parties contest all issues before a court of
law. The need to develop all relevant facts in the adversary system
is both fundamental and
Page 484 U. S. 409
comprehensive. The ends of criminal justice would be defeated if
judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial
system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the
United States v. Nixon, 418 U.
, 418 U. S. 709
(1974). The right to compel a witness' presence in the courtroom
could not protect the integrity of the adversary process if it did
not embrace the right to have the witness' testimony heard by the
trier of fact. The right to offer testimony is thus grounded in the
Sixth Amendment even though it is not expressly described in so
"The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant'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 purpose 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."
Washington v. Texas, 388 U. S. 14
388 U. S. 19
The right of the defendant to present evidence "stands on no
lesser footing than the other Sixth Amendment rights that we have
previously held applicable to the States." Id.
388 U. S. 18
cannot accept the State's argument that this constitutional right
may never be offended by the imposition of a discovery sanction
that entirely excludes the testimony of a material defense
Page 484 U. S. 410
Petitioner's claim that the Sixth Amendment creates an absolute
bar to the preclusion of the testimony of a surprise witness is
just as extreme, and just as unacceptable as the State's position
that the Amendment is simply irrelevant. The accused does not have
an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence. The Compulsory Process Clause provides him with an
effective weapon, but it is a weapon that cannot be used
There is a significant difference between the Compulsory Process
Clause weapon and other rights that are protected by the Sixth
Amendment -- its availability is dependent entirely on the
defendant's initiative. Most other Sixth Amendment rights arise
automatically on the initiation of the adversary process, and no
action by the defendant is necessary to make them active in his or
her case. [Footnote 14
While those rights shield the defendant from potential
prosecutorial abuses, the right to compel the presence and present
the testimony of witnesses provides the defendant with a sword that
may be employed to rebut the prosecution's case. The decision
whether to employ it in a particular case rests solely with the
defendant. The very nature of the right requires that its effective
use be preceded by deliberate planning and affirmative conduct.
The principle that undergirds the defendant's right to present
exculpatory evidence is also the source of essential limitations on
the right. The adversary process could not
Page 484 U. S. 411
function effectively without adherence to rules of procedure
that govern the orderly presentation of facts and arguments to
provide each party with a fair opportunity to assemble and submit
evidence to contradict or explain the opponent's case. The trial
process would be a shambles if either party had an absolute right
to control the time and content of his witnesses' testimony.
Neither may insist on the right to interrupt the opposing party's
case, and obviously there is no absolute right to interrupt the
deliberations of the jury to present newly discovered evidence. The
State's interest in the orderly conduct of a criminal trial is
sufficient to justify the imposition and enforcement of firm,
though not always inflexible, rules relating to the identification
and presentation of evidence. [Footnote 15
The defendant's right to compulsory process is itself designed
to vindicate the principle that the "ends of criminal justice would
be defeated if judgments were to be founded on a partial or
speculative presentation of the facts." United States v.
418 U.S. at 418 U. S. 709
Rules that provide for pretrial discovery of an opponent's
witnesses serve the same high purpose. [Footnote 16
] Discovery, like cross-examination,
minimizes the risk that a judgment will be predicated on
Page 484 U. S. 412
misleading, or even deliberately fabricated testimony. The
"State's interest in protecting itself against an eleventh-hour
defense" [Footnote 17
merely one component of the broader public interest in a full and
truthful disclosure of critical facts.
To vindicate that interest, we have held that even the defendant
may not testify without being subjected to cross-examination.
Brown v. United States, 356 U. S. 148
356 U. S. 156
(1958). Moreover, in United States v. Nobles, 422 U.
(1975), we upheld an order excluding the
testimony of an expert witness tendered by the defendant because he
had refused to permit discovery of a "highly relevant" report.
Writing for the Court, Justice Powell explained:
"The court's preclusion sanction was an entirely proper method
of assuring compliance with its order. Respondent's argument that
this ruling deprived him of the Sixth Amendment rights to
compulsory process and cross-examination misconceives the issue.
The District Court did not bar the investigator's testimony.
Cf. Washington v. Texas, 388 U. S. 14
, 388 U. S.
(1967). It merely prevented respondent from
presenting to the jury a partial view of the credibility issue by
adducing the investigator's testimony and thereafter refusing to
disclose the contemporaneous report that might offer further
critical insights. The Sixth Amendment does not confer
Page 484 U. S. 413
right to present testimony free from the legitimate demands
of the adversarial system; one cannot invoke the Sixth Amendment as
a justification for presenting what might have been a
Deciding, as we do, that it was within the court's
discretion to assure that the jury would hear the full testimony of
the investigator, rather than a truncated portion favorable to
respondent, we think it would be artificial indeed to deprive the
court of the power to effectuate that judgment. Nor do we find
constitutional significance in the fact that the court, in this
instance, was able to exclude the testimony in advance, rather than
receive it in evidence and thereafter charge the jury to disregard
it when respondent's counsel refused, as he said he would, to
produce the report."
at 422 U. S. 241
Petitioner does not question the legitimacy of a rule requiring
pretrial disclosure of defense witnesses, but he argues that the
sanction of preclusion of the testimony of a previously undisclosed
witness is so drastic that it should never be imposed. He argues,
correctly, that a less drastic sanction is always available.
Prejudice to the prosecution could be minimized by granting a
continuance or a mistrial to provide time for further
investigation; moreover, further violations can be deterred by
disciplinary sanctions against the defendant or defense
It may well be true that alternative sanctions are adequate and
appropriate in most cases, but it is equally clear that they would
be less effective than the preclusion sanction, and that there are
instances in which they would perpetuate, rather than limit, the
prejudice to the State and the harm to the adversary process. One
of the purposes of the discovery rule itself is to minimize the
risk that fabricated testimony will be believed. Defendants who are
willing to fabricate a defense may also be willing to fabricate
excuses for failing to comply with a discovery requirement. The
risk of a contempt violation
Page 484 U. S. 414
may seem trivial to a defendant facing the threat of
imprisonment for a term of years. A dishonest client can mislead an
honest attorney, and there are occasions when an attorney assumes
that the duty of loyalty to the client outweighs elementary
obligations to the court.
We presume that evidence that is not discovered until after the
trial is over would not have affected the outcome. [Footnote 18
] It is equally reasonable to
presume that there is something suspect about a defense witness who
is not identified until after the 11th hour has passed. If a
pattern of discovery violations is explicable only on the
assumption that the violations were designed to conceal a plan to
present fabricated testimony, it would be entirely appropriate to
exclude the tainted evidence regardless of whether other sanctions
would also be merited.
In order to reject petitioner's argument that preclusion is
never a permissible sanction for a discovery violation, it is
neither necessary nor appropriate for us to attempt to draft a
comprehensive set of standards to guide the exercise of discretion
in every possible case. It is elementary, of course, that a trial
court may not ignore the fundamental character of the defendant's
right to offer the testimony of witnesses in his favor. But the
mere invocation of that right cannot automatically and invariably
outweigh countervailing public interests. The integrity of the
adversary process, which depends both on the presentation of
reliable evidence and the
Page 484 U. S. 415
rejection of unreliable evidence, the interest in the fair and
efficient administration of justice, and the potential prejudice to
the truth-determining function of the trial process must also weigh
in the balance. [Footnote
A trial judge may certainly insist on an explanation for a
party's failure to comply with a request to identify his or her
witnesses in advance of trial. If that explanation reveals that the
omission was willful and motivated by a desire to obtain a tactical
advantage that would minimize the effectiveness of
cross-examination and the ability to adduce rebuttal evidence, it
would be entirely consistent with the purposes of the Compulsory
Process Clause simply to exclude the witness' testimony. [Footnote 20
] Cf. United States
v. Nobles, 422 U. S. 225
The simplicity of compliance with the discovery rule is also
relevant. As we have noted, the Compulsory Process Clause cannot be
invoked without the prior planning and affirmative conduct of the
defendant. Lawyers are accustomed to meeting deadlines. Routine
preparation involves location and interrogation of potential
witnesses and the serving of subpoenas
Page 484 U. S. 416
on those whose testimony will be offered at trial. The burden of
identifying them in advance of trial adds little to these routine
demands of trial preparation. [Footnote 21
It would demean the high purpose of the Compulsory Process
Clause to construe it as encompassing an absolute right to an
automatic continuance or mistrial to allow presumptively perjured
testimony to be presented to a jury. We reject petitioner's
argument that a preclusion sanction is never appropriate no matter
how serious the defendant's discovery violation may be.
Petitioner argues that the preclusion sanction was unnecessarily
harsh in this case because the voir dire
Wormley adequately protected the prosecution from any possible
prejudice resulting from surprise. Petitioner also contends that it
is unfair to visit the sins of the lawyer upon his client. Neither
argument has merit.
More is at stake than possible prejudice to the prosecution. We
are also concerned with the impact of this kind of conduct on the
integrity of the judicial process itself. The trial judge found
that the discovery violation in this case was both willful and
blatant. [Footnote 22
view of the fact that petitioner's counsel
Page 484 U. S. 417
had actually interviewed Wormley during the week before the
trial began, and the further fact that he amended his Answer to
Discovery on the first day of trial without identifying Wormley,
while he did identify two actual eyewitnesses whom he did not place
on the stand, the inference that he was deliberately seeking a
tactical advantage is inescapable. Regardless of whether prejudice
to the prosecution could have been avoided in this particular case,
it is plain that the case fits into the category of willful
misconduct in which the severest sanction is appropriate. After
all, the court, as well as the prosecutor, has a vital interest in
protecting the trial process from the pollution of perjured
testimony. Evidentiary rules which apply to categories of
inadmissible evidence -- ranging from hearsay to the fruits of
illegal searches -- may properly be enforced even though the
particular testimony being offered is not prejudicial. The pretrial
conduct revealed by the record in this case gives rise to a
sufficiently strong inference that "witnesses are being found that
really weren't there," to justify the sanction of preclusion.
The argument that the client should not be held responsible for
his lawyer's misconduct strikes at the heart of the attorney-client
relationship. Although there are basic rights
Page 484 U. S. 418
that the attorney cannot waive without the fully informed and
publicly acknowledged consent of the client, [Footnote 24
] the lawyer has -- and must have --
full authority to manage the conduct of the trial. The adversary
process could not function effectively if every tactical decision
required client approval. Moreover, given the protections afforded
by the attorney-client privilege and the fact that extreme cases
may involve unscrupulous conduct by both the client and the lawyer,
it would be highly impracticable to require an investigation into
their relative responsibilities before applying the sanction of
preclusion. In responding to discovery, the client has a duty to be
candid and forthcoming with the lawyer, and when the lawyer
responds, he or she speaks for the client. Putting to one side the
exceptional cases in which counsel is ineffective, the client must
accept the consequences of the lawyer's decision to forgo
cross-examination, to decide not to put certain witnesses on the
stand, or to decide not to disclose the identity of certain
witnesses in advance of trial. In this case, petitioner has no
greater right to disavow his lawyer's decision to conceal Wormley's
identity until after the trial had commenced than he has to disavow
the decision to refrain from adducing testimony from the
eyewitnesses who were identified in the Answer to Discovery.
Whenever a lawyer makes use of the sword provided by the Compulsory
Process Clause, there is some risk that he may wound his own
client. The judgment of the Illinois Appellate Court is
Page 484 U. S. 419
The Sixth Amendment provides, in part:
"In all criminal prosecutions, the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in his
favor. . . ."
This right is applicable in state, as well as federal,
prosecutions. Washington v. Texas, 388 U. S.
, 388 U. S. 17
Illinois Supreme Court Rule 413(d) provides in pertinent
"Subject to constitutional limitations and within a reasonable
time after the filing of a written motion by the State, defense
counsel shall inform the State of any defenses which he intends to
make at a hearing or trial and shall furnish the State with the
following material and information within his possession or
"(i) the names and last known addresses of persons he
intends to call as witnesses
together with their relevant
written or recorded statements, including memoranda reporting or
summarizing their oral statements, any record of prior criminal
convictions known to him. . . ."
These two men, Earl Travis, the brother of Derrick Travis, and
Luther Taylor, petitioner's brother, were identified by prosecution
witnesses as participants in the street fight.
"During the direct testimony of the witnesses, your Honor,
called by the State, I was informed of some additional witnesses
which could have and probably did, in fact, see this entire
incident. We at this time would ask to amend our Answer to include
two additional witnesses."
"THE COURT: Who are they?"
"MR. VAN: One is a guy named Alfred Wrdely of which -- "
"THE DEFENDANT: Excuse me, W-r-d-e-l-y."
"MR. VAN: Whose address I do not have. I'm going to have to see
if I can locate him tonight. And Pam Berkhalter."
"THE COURT: Yeah, but the defendant was there, and the defendant
is now telling you Pam Berkhalter, and he's now telling you Alfred
Wrdely. Why didn't he tell you that sometime ago? He's got an
obligation to tell you."
"MR. VAN: That is correct, Judge. He, in fact, told me about
Alfred sometime ago. The problem was that he could not locate
"There's all sorts of people on the scene, and all of these
people should have been disclosed before."
"When you bring up these witnesses at the very last moment,
there's always the allegation and the thought process that
witnesses are being found that really weren't there. And it's a
problem in these types of cases, and it should be -- should have
been put on that sheet a long time ago."
"At any rate, I'll worry about it tomorrow."
The record does not explain why Pam Berkhalter did not
"Q. What, if anything did you learn by standing there in the
"A. Well, Jack had a blanket. It was two pistols in there and he
gave it to -- "
"Q. And then what, if anything, did they say at that time, if
you can recall?"
"A. Well, they were saying what they were going to do to the
people. Say they were after Ray and the other people."
"Q. What, if anything, did you do at that time?"
"A. At that time, I left. I was on my way home, and I happened
to run into Ray and them, and so I told them what was happening and
to watch out, because they got weapons."
The State also argues that we should decline to exercise
jurisdiction over petitioner's Sixth Amendment claim because it was
inadequately presented in the state court. As respondent points
out, petitioner did not specifically articulate his claim as based
on the Compulsory Process Clause until he filed a petition for
rehearing in the Illinois Appellate Court. Moreover, at trial,
petitioner merely argued that the trial court erred by not letting
his witness testify. On appeal, however, petitioner asserted that
the error was constitutional:
"The trial judge abused his discretion and denied [petitioner]
due process by excluding a material defense witness from testifying
as a sanction for a discovery violation."
Brief and Argument For Appellant in No. 84-1073 (App.Ct.Ill.),
p. 28. Although petitioner expressly asserted only a due process
violation, his reliance on the Sixth Amendment was clear. He cited
and relied upon, through a quotation from an Illinois Appellate
Court decision, two of our Compulsory Process Clause cases,
Washington v. Texas, 388 U. S. 14
(1967), and Chambers v. Mississippi, 410 U.
(1973). The state court decision from which
petitioner quoted, People v. Rayford,
43 Ill.App.3d 283,
356 N.E.2d 1274 (1976), was also a Compulsory Process Clause case.
The court in Payford
asserted that use of the preclusion
sanction in criminal cases should be limited to extreme situations,
because, in criminal cases, "due process
requires that a
defendant be permitted to offer testimony of witnesses in his
at 286-287, 356 N.E.2d at 1277 (emphasis
added), citing Washington, supra.
A generic reference to the Fourteenth Amendment is not
sufficient to preserve a constitutional claim based on an
unidentified provision of the Bill of Rights, but in this case the
authority cited by petitioner and the manner in which the
fundamental right at issue has been described and understood by the
Illinois courts make it appropriate to conclude that the
constitutional question was sufficiently well presented to the
state courts to support our jurisdiction.
Clinton, The Right to Present a Defense: An
Emergent Constitutional Guarantee In Criminal Trials, 9 Ind.L.Rev.
711, 767 (1976).
8 J. Wigmore, Evidence § 2191, pp. 68-70 (J. McNaughton
"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 regulation would come
properly in, as part of the Judicial system."
"The question on MR. BURKE's motion was taken and lost; ayes 9,
1 Annals of Cong. 756 (1789).
"Particulars varied from state to state, but the provisions
reflected a common principle. Three states emphasized the right to
present evidence, guaranteeing the accused the right 'to call for
evidence in his favour.' Two emphasized the subpoena power, giving
the defendant the right to produce 'all proofs that may be
favorable' to him. North Carolina combined the right to put on a
defense with the right of confrontation, guaranteeing the right 'to
confront the accusers and witnesses with other testimony.' Delaware
emphasized the defendant's interest in sworn testimony, giving him
the right 'to examine evidence on oath in his favour.' New Jersey
opted for a principle of equality between the parties: '[A]ll
criminals shall be admitted to the same privileges of witnesses and
counsel, as their prosecutors are or shall be entitled to.'
Maryland consolidated several interests, guaranteeing the defendant
the right 'to examine [his] witnesses . . . on oath,' and 'to have
process for his witnesses.'"
"Some of the state provisions originated in English statutes,
some in colonial enactments, and some were original. Regardless,
they all reflected the principle that the defendant must have a
meaningful opportunity, at least as advantageous as that possessed
by the prosecution, to establish the essential elements of his
case. The states pressed the principle so vigorously that the
framers of the federal Bill of Rights included it in the sixth
amendment in a distinctive formulation of their own."
Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 94-95
(1974) (footnotes omitted).
As one commentator has noted:
"The defendant's rights to be informed of the charges against
him, to receive a speedy and public trial, to be tried by a jury,
to be assisted by counsel, and to be confronted with adverse
witnesses are designed to restrain the prosecution by regulating
the procedures by which it presents its case against the accused.
They apply in every case, whether or not the defendant seeks to
rebut the case against him or to present a case of his own.
Compulsory process, on the other hand, comes into play at the close
of the prosecution's case. It operates exclusively at the
defendant's initiative, and provides him with affirmative aid in
presenting his defense."
"In the exercise of [the right to present witnesses], the
accused, as is required of the State, must comply with established
rules of procedure and evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence."
Chambers v. Mississippi,
410 U.S. at 410 U. S.
"Notice-of-alibi rules, now in use in a large and growing number
of States, are based on the proposition that the ends of justice
will best be served by a system of liberal discovery which gives
both parties the maximum possible amount of information with which
to prepare their cases, and thereby reduces the possibility of
surprise at trial. See, e.g.,
Brennan, The Criminal
Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q.
279; American Bar Association Project on Standards for Criminal
Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft
1970); Goldstein, The State and the Accused: Balance of Advantage
in Criminal Procedure, 69 Yale L.J. 1149 (1960). The growth of such
discovery devices is a salutary development which, by increasing
the evidence available to both parties, enhances the fairness of
the adversary system."
Wardius v. Oregon, 412 U. S. 470
412 U. S.
"Given the ease with which an alibi can be fabricated, the
State's interest in protecting itself against an eleventh-hour
defense is both obvious and legitimate. Reflecting this interest,
notice-of-alibi provisions, dating at least from 1927, are now in
existence in a substantial number of States. The adversary system
of trial is hardly an end in itself; it is not yet a poker game in
which players enjoy an absolute right always to conceal their cards
until played. We find ample room in that system, at least as far as
'due process' is concerned, for the instant Florida rule, which is
designed to enhance the search for truth in the criminal trial by
insuring both the defendant and the State ample opportunity to
investigate certain facts crucial to the determination of guilt or
Williams v. Florida, 399 U. S. 78
399 U. S. 81
(1970) (footnotes omitted).
Lloyd v. Gill,
406 F.2d 585, 587 (CA5 1969) (motion for
new trial based on newly discovered evidence "may not be granted
unless . . . the facts discovered are of such nature that they will
probably change the result if a new trial is granted, . . . they
have been discovered since the trial and could not by the exercise
of due diligence have been discovered earlier, and . . . they are
not merely cumulative or impeaching"); Rasnar Benson, Inc. v.
325 F.2d 591, 594 (CA3 1963) ("[C]ourts will indulge
all presumptions in favor of the validity of a verdict");
Rowlik v. Greenfield,
87 F. Supp. 997, 1001 (ED Pa.1949)
("[N]ew trials should not be allowed simply because after the
verdict the losing party has come upon some witness or information
theretofore unknown to him or his attorney").
See, e.g., Fendler v. Goldsmith,
728 F.2d 1181,
1188-1190 (CA9 1983) (giving consideration to the effectiveness of
less severe sanctions, the impact of preclusion on the evidence at
trial and the outcome of the case, the extent of prosecutorial
surprise or prejudice, and whether the violation was willful).
There may be cases in which a defendant has legitimate
objections to disclosing the identity of a potential witness.
Note, The Preclusion Sanction -- A Violation of the
Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1350
(1972). Such objections, however, should be raised in advance of
trial in response to the discovery request and, if the parties are
unable to agree on a resolution, presented to the court. Under the
Federal Rules of Criminal Procedure and under the rules adopted by
most States, a party may request a protective order if he or she
has just cause for objecting to a discovery request. See,
Fed.Rule Crim.Proc. 16(d)(1); Ill.Sup.Ct.Rule 412(i). In
this case, there is no issue concerning the validity of the
discovery requirement or petitioner's duty to comply with it. There
is also no indication that petitioner ever objected to the
prosecution's discovery request.
"In the case before us, the notice-of-alibi rule, by itself, in
no way affected petitioner's crucial decision to call alibi
witnesses or added to the legitimate pressures leading to that
course of action. At most, the rule only compelled petitioner to
accelerate the timing of his disclosure, forcing him to divulge at
an earlier date information that the petitioner from the beginning
planned to divulge at trial. Nothing in the Fifth Amendment
privilege entitles a defendant as a matter of constitutional right
to await the end of the State's case before announcing the nature
of his defense, any more than it entitles him to await the jury's
verdict on the State's case-in-chief before deciding whether or not
to take the stand himself."
Williams v. Florida,
399 U.S. at 399 U. S.
The trial judge also expressed concern about discovery
violations in other trials. If those violations involved the same
attorney, or otherwise contributed to a concern about the
trustworthiness of Wormley's 11th-hour testimony, they were
relevant. Unrelated discovery violations in other litigation would
not, however, normally provide a proper basis for curtailing the
defendant's constitutional right to present a complete defense.
It should be noted that, in Illinois, the sanction of preclusion
is reserved for only the most extreme cases. In People v.
the Illinois Appellate Court explained:
"The exclusion of evidence is a drastic measure, and the rule in
civil cases limits its application to flagrant violations, where
the uncooperative party demonstrates a 'deliberate contumacious or
unwarranted disregard of the court's authority.' (Schluartz v.
3 Ill.App.3d 596, 599, 277 N.E.2d 529, 531;
Department of Transportation v. Mainline Center, Inc.,
Ill.App.3d 538, 347 N.E.2d 837.) The reasons for restricting the
use of the exclusion sanction to only the most extreme situations
are even more compelling in the case of criminal defendants, where
due process requires that a defendant be permitted to offer
testimony of witnesses in his defense. (Washington v.
Texas, 388 U. S. 14
. . . .) 'Few rights
are more fundamental than that of an accused to present witnesses
in his own defense.' (Chambers v. Mississippi,
410 U. S.
, 410 U. S. 302
. . . .)"
43 Ill.App.3d at 286-287, 356 N.E.2d at 1277.
See, e.g., Brookhart v. Janis, 384 U. S.
, 384 U. S. 7
(1966) (defendant's constitutional right to plead not guilty and to
have a trial where he could confront and cross-examine adversary
witness could not be waived by his counsel without defendant's
consent); Doughty v. State, 470 N.E.2d
(record must show "personal communication of the defendant to the
court that he chooses to relinquish the right [to a jury trial]");
Cross v. United States,
117 U.S.App.D.C. 56, 325 F.2d 629
(1963) (waiver of right to be present during trial).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
Criminal discovery is not a game. It is integral to the quest
for truth and the fair adjudication of guilt or innocence.
Violations of discovery rules thus cannot go uncorrected or
undeterred without undermining the truth-seeking process. The
question in this case, however, is not whether discovery rules
should be enforced, but whether the need to correct and deter
discovery violations requires a sanction that itself distorts the
truthseeking process by excluding material evidence of innocence in
a criminal case. I conclude that, at least where a criminal
defendant is not personally responsible for the discovery
violation, alternative sanctions are not only adequate to correct
and deter discovery violations, but are far superior to the
arbitrary and disproportionate penalty imposed by the preclusion
sanction. Because of this, and because the Court's balancing test
creates a conflict of interest in every case involving a discovery
violation, I would hold that, absent evidence of the defendant's
personal involvement in a discovery violation, the Compulsory
Process Clause per se
bars discovery sanctions that
exclude criminal defense evidence.
Before addressing the merits, I pause to explicate what I take
as implicit in the Court's conclusion that the defendant's
constitutional claims were "sufficiently well presented to the
state courts to support our jurisdiction." Ante
484 U. S. 407
n. 9. I quite agree with the Court that the constitutional claims
were not waived in the Appellate Court of Illinois, both because
the defendant's appellate brief adequately presented the Sixth
Amendment claim, see ibid.,
and because the analysis in
this case would essentially be the same under the Due Process
Clause, see ante
at 484 U. S.
-407, n. 9. The Court does not, however, explain its
conclusion that the constitutional claims were not waived at trial.
I conclude that, although as a matter of Illinois law the defendant
waived his federal constitutional
Page 484 U. S. 420
claims at trial, as a matter of federal law that waiver does not
bar review in this Court.
The only legal challenge to the witness preclusion that the
defendant raised at trial was one sentence in his motion for new
trial stating: "The Court erred by not letting a witness for
defendant testify before the Jury." Record 412. The Appellate Court
of Illinois stated that the only witness preclusion issue before it
on appeal was whether "the trial court abused its discretion by
excluding the testimony of a defense witness as a sanction for
violation of the discovery rules." 141 Ill.App.3d 839, 841, 491
N.E.2d 3, 4-5 (1986). The Appellate Court never addressed either
the compulsory process or due process claims concerning witness
at 844-845, 491 N.E.2d at 6-7, even though
the briefs implicitly presented the former claim and expressly
asserted the latter. This alone may not warrant the assumption that
the Appellate Court implicitly held that a motion for new trial
stating that "the court erred" preserved only an abuse of
discretion claim and waived any constitutional claims. But the
Appellate Court of Illinois had already reached that holding in an
identical case. See People v. Douthit,
51 Ill.App.3d 751,
366 N.E.2d 950 (1977). The court in Douthit
"Despite appellate counsel's excellent brief on the issue of the
constitutionality, as applied to a criminal defendant, of that
portion of Supreme Court Rule 415(g)(i) (Ill.Rev.Stat.1975, ch.
110A, par. 415(g)(i)) authorizing exclusion of evidence for failure
to comply with a discovery rule, we deem that issue, raised for the
first time on appeal, to have been waived. There is nothing in the
record to indicate that defense counsel ever raised any
constitutional objection during the extensive in-chambers
discussion summarized above, nor did he do so in his post-trial
motion, which requests a new trial solely on the ground that"
"[t]he court erred in ruling that the defendant could not call
Glen Muench and Rocky Reed to testify to defendant's state of
intoxication at the time
Page 484 U. S. 421
of the commission of the alleged burglary."
"As we read this motion, it raises only the
nonconstitutional question whether the trial court abused its
discretion in exercising the exclusion sanction.
raise an issue, including a constitutional issue, in the written
motion for a new trial constitutes waiver of that issue, and it
cannot be urged as a ground for reversal on review."
at 753-754, 366 N.E.2d at 952-953 (citations and
footnotes omitted; emphasis added). Although different districts of
the Appellate Court of Illinois decided Douthit
case, given that at trial both defendants presented identical
challenges to the identical provision in the identical fashion,
both appellate briefs raised the identical constitutional and
nonconstitutional claims, and both districts considered only the
abuse of discretion claim, I am constrained to conclude that, in
this case, like in Douthit,
the Appellate Court of
Illinois deemed the constitutional claims waived as a matter of
The conclusion that the Appellate Court of Illinois deemed the
federal constitutional claims waived as a matter of state law does
not, of course, mean that they are waived as a matter of federal
"[W]e have consistently held that the question of when and how
defaults in compliance with state procedural rules can preclude our
consideration of a federal question is, itself, a federal
Henry v. Mississippi, 379 U. S. 443
379 U. S. 447
(1965). Specifically, it is well established that, where a state
court possesses the power to disregard a procedural default in
exceptional cases, the state court's failure to exercise that power
in a particular case does not bar review in this Court.
Williams v. Georgia, 349 U. S. 375
349 U. S.
-384 (1955); see also Sullivan v. Little Hunting
Park, Inc., 396 U. S. 229
396 U. S.
-234 (1969); Henry, supra,
at 379 U. S. 449
n. 5. The Illinois Supreme and Appellate Courts possess such a
power. Illinois Supreme Court Rule 615(a) provides: "Plain errors
or defects affecting substantial rights may be noticed [on appeal]
even though they were not brought to the
Page 484 U. S. 422
attention of the trial court." Those courts frequently rely on
this provision to address, in their discretion, issues that have
been waived at trial. See
Jenner, Tone, & Martin,
Historical and Practice Notes following Ill.Ann.Stat., ch. 110A, �
615 (1985) (citing 16 appellate cases decided between 1979 and 1981
as examples of cases invoking plain error alone); see also,
e.g., People v. Visnack,
135 Ill.App.3d 113, 118, 481 N.E.2d
744, 748 (1985) (invoking substantial rights exception despite
waiver). Apparently, the Appellate Court below declined to exercise
this discretion and deemed the waiver binding. Since, under
Williams v. Georgia,
such a decision does not bar our
review, we are free to address the merits despite the state law
On the merits, I start from the same premise as the Court --
that the Compulsory Process Clause of the Sixth Amendment embodies
a substantive right to present criminal defense evidence before a
jury. See ante
484 U. S. 408
-409; see also, e.g., Pennsylvania v.
Ritchie, 480 U. S. 39
480 U. S. 56
(1987). Although I thus join the Court in rejecting the State's
argument that the Clause embodies only the right to subpoena
witnesses, I cannot agree with the Court's assertion that "[t]he
State's argument is supported by the plain language of the Clause."
at 484 U. S. 407
The Compulsory Process Clause provides that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor." This
plain language supports the State's argument only if one assumes
that the most natural reading of constitutional language is the
least meaningful. For the right to subpoena defense witnesses would
be a hollow protection indeed if the government could simply refuse
to allow subpoenaed defense witnesses to testify. As this Court has
recognized for the last 20 years, the right to subpoena witnesses
must mean the right to subpoena them for a useful
Page 484 U. S. 423
purpose, and thus necessarily implies a substantive limitation
on the government's power to prevent those witnesses from
"The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain
right to present a defense, the right to present the defendant's
version of the facts as well as the prosecution's to the
so it may decide where the truth lies."
Washington v. Texas, 388 U. S. 14
388 U. S. 19
(1967) (emphasis added).
"The Framers of the Constitution did not intend to commit the
futile act of giving to a defendant the right to secure the
attendance of witnesses whose testimony he had no right to
at 388 U. S. 23
The substantive limitation on excluding criminal defense evidence
secured by the plain terms of the Compulsory Process Clause is also
grounded in the general constitutional guarantee of due process.
See Chambers v. Mississippi, 410 U.
, 410 U. S.
-302 (1973); see also Rock v. Arkansas,
483 U. S. 44
483 U. S. 51
(1987); Crane v. Kentucky, 476 U.
, 476 U. S.
The Compulsory Process and Due Process Clauses thus require
courts to conduct a searching substantive inquiry whenever the
government seeks to exclude criminal defense evidence. After all,
"[f]ew rights are more fundamental than that of an accused to
present witnesses in his own defense." Chambers, supra,
410 U. S. 302
The exclusion of criminal defense evidence undermines the central
truthseeking aim of our criminal justice system, see United
States v. Nixon, 418 U. S. 683
418 U. S. 709
(1974), because it deliberately distorts the record at the risk of
misleading the jury into convicting an innocent person. Surely the
paramount value our criminal justice system places on acquitting
the innocent, see, e.g., In re Winship, 397 U.
(1970), demands close scrutiny of any law
preventing the jury from hearing evidence favorable
Page 484 U. S. 424
to the defendant. On the other hand, the Compulsory Process
Clause does not invalidate every restriction on the presentation of
evidence. The Clause does not, for example, require criminal courts
to admit evidence that is irrelevant, Crane, supra,
476 U. S.
-690, testimony by persons who are mentally infirm,
see Washington v. Texas, supra,
at 388 U. S. 23
21, or evidence that represents a half-truth, see United States
v. Nobles, 422 U. S. 225
422 U. S. 241
(1975). That the inquiry required under the Compulsory Process
Clause is sometimes difficult does not, of course, justify
abandoning the task altogether.
Accordingly, this Court has conducted searching substantive
inquiries into the rationales underlying every challenged exclusion
of criminal defense evidence that has come before it to date. That
scrutiny has led the Court to strike as constitutionally
"rules that prevent whole categories of defense witnesses from
testifying on the basis of a priori
presume them unworthy of belief,"
such as a rule against introducing the testimony of an alleged
accomplice, Washington v. Texas, supra,
at 388 U. S. 22
an application of the hearsay rule to statements that "were
originally made and subsequently offered at trial under
circumstances that provided considerable assurance of their
reliability," Chambers, supra,
at 410 U. S. 300
the exclusion of evidence bearing on the credibility of a voluntary
confession, Crane, supra,
at 476 U. S.
-691; and a per se
rule excluding all
post-hypnosis testimony, Rock, supra,
at 483 U. S. 56
Based on a thorough review of the relevant case law, this Court
defined the standard governing the constitutional inquiry just last
Term in Rock v. Arkansas,
concluding that restrictions on
the right to present criminal defense evidence can be
constitutional only if they "accommodate other legitimate
interests in the criminal trial process'" and are not "arbitrary or
disproportionate to the purposes they are designed to serve."
Rock v. Arkansas, supra, at 483 U. S. 55-56,
quoting Chambers, supra, at 410 U. S. 295.
Page 484 U. S. 425
The question at the heart of this case, then, is whether
precluding a criminal defense witness from testifying bears an
arbitrary and disproportionate relation to the purposes of
discovery, at least absent any evidence that the defendant was
personally responsible for the discovery violations. This question
is not answered by merely pointing out that discovery, like
compulsory process, serves truth-seeking interests. Compare
at 484 U. S.
-412. I would be the last to deny the utility of
discovery in the truthseeking process. See
Criminal Prosecution: Sporting Event or Quest for Truth?, 1963
Wash.U.L.Q. 279. By aiding effective trial preparation, discovery
helps develop a full account of the relevant facts, helps detect
and expose attempts to falsify evidence, and prevents factors such
as surprise from influencing the outcome at the expense of the
merits of the case. But these objectives are accomplished by
compliance with the discovery rules, not by the exclusion of
material evidence. Discovery sanctions serve the objectives of
discovery by correcting for the adverse effects of discovery
violations and deterring future discovery violations from
occurring. If sanctions other than excluding evidence can
sufficiently correct and deter discovery violations, [Footnote 2/2
] then there is no reason to
resort to a sanction that itself constitutes "a conscious mandatory
distortion of the factfinding process whenever applied." Weinstein,
Some Difficulties in Devising Rules for
Page 484 U. S. 426
Determining Truth in Judicial Trials, 66 Colum.L.Rev. 223, 237
The use of the preclusion sanction as a corrective measure --
that is, as a measure for addressing the adverse impact a discovery
violation might have on truth-seeking in the case at hand -- is
asserted to have two justifications: (1) it bars the defendant from
introducing testimony that has not been tested by discovery,
at 484 U. S.
-413; and (2) it screens out witnesses who are
inherently suspect because they were not disclosed until trial,
at 484 U. S.
-416. The first justification has no bearing on this
case, because the defendant does not insist on a right to introduce
a witness' testimony without giving the prosecution an opportunity
for discovery. He concedes that the trial court was within its
authority in requiring the witness to testify first out of the
presence of the jury, and he concedes that the trial court could
have granted the prosecution a continuance to give it sufficient
time to conduct further discovery concerning the witness and the
proffered testimony. See
Brief for Petitioner 18-19. He
argues only that he should not be completely precluded from
introducing the testimony.
and Brown v. United States,
356 U. S. 148
356 U. S. 156
(1958) are thus inapposite. Compare ante
at 484 U. S.
-413. In Nobles,
the defendant sought to
impeach the credibility of prosecution witnesses with testimony
from a defense investigator regarding statements those witnesses
had made in interviews with the investigator. 422 U.S. at
422 U. S.
-229. The trial court ruled that the investigator
could not testify unless the defense disclosed the report the
investigator had written summarizing the interviews. Ibid.
This Court properly rejected the defendant's claim that his right
to compulsory process had been violated because:
"The District Court did not bar the investigator's
testimony. Cf. Washington v. Texas, 388 U. S.
, 388 U. S. 19
Page 484 U. S. 427
It merely prevented respondent from presenting to the jury a
partial view of the credibility issue by adducing the
investigator's testimony and thereafter refusing to disclose the
contemporaneous report that might offer further critical insights.
The Sixth Amendment does not confer the right to present testimony
free from the legitimate demands of the adversarial system; one
cannot invoke the Sixth Amendment as a justification for presenting
what might have been a half-truth."
at 422 U. S. 241
(emphasis added). Here, by contrast, the trial court did bar the
proffered defense testimony. It did not, as in Nobles,
simply condition the right to introduce the testimony on the
defendant's disclosure of evidence that might demonstrate
weaknesses in the testimony. The authority of trial courts to
prevent the presentation of a "half-truth" by ordering further
discovery is thus not at issue here. For similar reasons, the
holding in Brown
(that a person who testifies at her own
denaturalization proceeding waives her Fifth Amendment right not to
answer questions on cross-examination) can have no bearing on this
Nor, despite the Court's suggestions, see ante
484 U. S.
-417, is the preclusion at issue here justifiable on
the theory that a trial court can exclude testimony that it
presumes or finds suspect. In the first place, the trial court did
not purport to rely on any such presumption or finding in this
case. Rather, after ruling that he would exclude the testimony
because of the discovery violation, the judge stated:
"Further, for whatever value it is, because this is a jury
I have a great deal of doubt in my mind as to the
veracity of this young man that testified as to whether he was an
eyewitness on the scene, sees guns that are wrapped up. He doesn't
know Ray, but he stops Ray. "
Page 484 U. S. 428
"At any rate,
Mr. Wormley is not going to testify, be a
witness in this courtroom."
App. 28 (emphasis added). The judge gave no indication that he
was willing to exclude the testimony based solely on its
presumptive or apparent lack of credibility. Nor, apparently, would
Illinois law allow him to do so. See generally, e.g., People v.
Van Dyke, 414 Ill. 251
254, 111 N.E.2d
, 167 ("The credibility of the witnesses presented, as well
as the weight of the evidence, [is] for the jury to determine, and
the court will not substitute its judgment therefor"), cert.
345 U.S. 978 (1953); Village of Des Plaines v.
270 Ill. 149, 159, 110 N.E. 417, 422 (1915)
("[I]t is . . . for the jury to determine . . . to which witnesses
they will give the greatest weight, and not for the court to tell
them"). Indeed, far from being able to prevent the jury from
hearing the testimony of witnesses that the trial court deems
untrustworthy, Illinois trial courts are not even permitted to
comment on the credibility of witnesses to the jury. [Footnote 2/3
] No Illinois case interpreting
Rule 415(g) suggests that the Rule gives a trial judge special
authority to exclude criminal defense witnesses based on their
apparent or presumed unreliability.
In addition, preventing a jury from hearing the proffered
testimony based on its presumptive or apparent lack of credibility
would be antithetical to the principles laid down in Washington
388 U.S. at
388 U. S. 20
-23, and reaffirmed in Rock v.
483 U.S. at
483 U. S. 53
-55. We there criticized rules that
disqualified witnesses who had an interest in the
Page 484 U. S. 429
litigation as having the "effect of suppressing the truth,"
Washington v. Texas, supra,
at 388 U. S. 20
"[D]isqualifications for interest . . . rested on the unstated
premises that the right to present witnesses was subordinate to the
court's interest in preventing perjury, and that erroneous
decisions were best avoided by preventing the jury from hearing any
testimony that might be perjured, even if it were the only
testimony available on a crucial issue."
"'. . . [T]he conviction of our time is that the truth 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. . . .'"
". . . [W]e believe that [the latter] reasoning [is] required by
the Sixth Amendment."
388 U.S. at 388 U. S. 21
quoting Rosen v. United States, 245 U.
, 245 U. S. 471
(1918). See also Rock v. Arkansas, supra,
at 483 U. S. 53
(quoting and restating the above). The Court in Washington v.
accordingly concluded that
"arbitrary rules that prevent whole categories of defense
witnesses from testifying on the basis of a priori
categories that presume them unworthy of belief"
are unconstitutional. 388 U.S. at 388 U. S.
Although persons who are not identified as defense witnesses
until trial may not be as trustworthy as other categories of
persons, surely any presumption that they are so suspect that the
jury can be prevented from even listening to their testimony is at
least as arbitrary as presumptions excluding an accomplice's
testimony, Washington v. Texas, supra,
bearing indicia of reliability, Chambers v. Mississippi,
410 U. S. 284
(1973), or a defendant's post-hypnosis testimony, Rock,
-- all of which have been declared unconstitutional.
at 484 U. S.
Page 484 U. S. 430
The proper method, under Illinois law [Footnote 2/4
] and Washington v. Texas, supra,
for addressing the concern about reliability is for the prosecutor
to inform the jury about the circumstances casting doubt on the
testimony, thus allowing the jury to determine the credit and
weight it wants to attach to such testimony. [Footnote 2/5
] The power of the court to take that kind
of corrective measure is undisputed; the defendant concedes that
the court could have allowed the prosecutor to comment on the
defense's failure to disclose the identity of the witness until
Brief for Petitioner 18-19.
Leaving deterrence aside for the moment, then, precluding
witness testimony is clearly arbitrary and disproportionate to the
purpose discovery is intended to serve -- advancing the quest for
truth. Alternative sanctions -- namely, granting the prosecution a
continuance and allowing the prosecutor to comment on the witness
concealment -- can correct for any adverse impact the discovery
violation would have on the truth-seeking process. Moreover, the
alternative sanctions, unlike the preclusion sanction, do not
distort the truth-seeking process by excluding material evidence of
Of course, discovery sanctions must include more than corrective
measures. They must also include punitive measures that can deter
future discovery violations from taking place. Otherwise, parties
will have little reason not to seek
Page 484 U. S. 431
tactical advantages by purposefully violating discovery rules
and orders. Those violations that are not caught and corrected will
then impose a significant cost on the truth-seeking process,
at 484 U. S. 425
at 484 U. S.
-412, that, in the long run, could conceivably
outweigh the burden on truth-seeking imposed by the preclusion
sanction. Without some means of deterring discovery violations,
moreover, the criminal system would continually be interrupted and
distracted by continuances and other corrective measures. See
at 484 U. S.
In light of the availability of direct punitive measures,
however, there is no good reason, at least absent evidence of the
defendant's complicity, to countenance the arbitrary and
disproportionate punishment imposed by the preclusion sanction. The
central point to keep in mind is that witness preclusion operates
as an effective deterrent only to the extent that it has a possible
effect on the outcome of the trial. Indeed, it employs in part the
possibility that a distorted record will cause a jury to convict a
defendant of a crime he did not commit. Witness preclusion thus
punishes discovery violations in a way that is both
disproportionate -- it might result in a defendant charged with a
capital offense being convicted and receiving a death sentence he
would not have received but for the discovery violation -- and
arbitrary -- it might, in another case involving an identical
discovery violation, result in a defendant suffering no change in
verdict or, if charged with a lesser offense, being convicted and
receiving a light or suspended sentence. In contrast, direct
punitive measures (such as contempt sanctions or, if the attorney
is responsible, disciplinary proceedings) can gradate the
punishment to correspond to the severity of the discovery
The arbitrary and disproportionate nature of the preclusion
sanction is highlighted where the penalty falls on the defendant
even though he bore no responsibility for the discovery violation.
In this case, although there was ample evidence that the defense
attorney willfully violated Rule
Page 484 U. S. 432
413(d), [Footnote 2/6
] there was
no evidence that the defendant played any role in that violation.
Nor did the trial court make any effort to determine whether the
defendant bore any responsibility for the discovery violation.
Indeed, reading the record leaves the distinct impression that the
main reason the trial court excluded Wormley's testimony was the
belief that the defense counsel had purposefully lied about when he
had located Wormley. App. 25-28.
Worse yet, the trial court made clear that it was excluding
Wormley's testimony not only in response to the defense counsel's
actions in this case, but also in response to the actions of other
defense attorneys in other cases. The trial court stated:
". . . All right, I am going to deny Wormley an opportunity to
testify here. He is not going to testify. I find this a blatent
] violation of the discovery rules, willful violation
of the rules. I also feel that defense attorneys have been
violating discovery in this courtroom in the last three or four
cases blatently [sic
] and I am going to put a stop to it,
and this is one way to do so."
at 28. Although the Court recognizes this problem,
it offers no response other than the cryptic statement that
"[u]nrelated discovery violations . . . would not . . . normally
provide a proper basis for curtailing the defendant's
constitutional right to present a complete defense."
at 484 U. S. 416
n. 22. We are left to wonder either why this case is abnormal or
why an exclusion founded on an improper basis should be upheld.
Page 484 U. S. 433
In the absence of any evidence that a defendant played any part
in an attorney's willful discovery violation, directly sanctioning
the attorney is not only fairer but more
deterring violations than excluding defense evidence. Compare
at 484 U. S.
-414. The threat of disciplinary proceedings, fines,
or imprisonment will likely influence attorney behavior to a far
greater extent than the rather indirect penalty threatened by
evidentiary exclusion. Such sanctions were available here. Rather
than punishing the defendant under Rule 415(g)(i), the trial court
could have sanctioned the attorney under Rule 415(g)(ii), which
provides that "Willful violation by counsel of an applicable
discovery rule . . . may subject counsel to appropriate sanctions
by the court." See also
App. 28 (threatening disciplinary
proceedings). Direct sanctions against the attorney would have been
particularly appropriate here, since the discovery rule violated in
this case places the obligation to comply with discovery not on the
defendant, but directly on the attorney: providing that, upon
motion by the State, a "defense counsel
. . . shall
furnish the State with . . . the names and last known addresses of
persons he intends to call as witnesses. . . ." Ill.Sup.Ct. Rule
413(d) (emphasis added).
The situation might be different if the defendant willfully
caused the discovery violation because, as the Court points out,
at 484 U. S.
-414, some defendants who face the prospect of a
lengthy imprisonment are arguably impossible to deter with direct
punitive sanctions such as contempt. But that is no explanation for
allowing defense witness preclusion where there is no evidence that
the defendant bore any responsibility for the discovery violation.
At a minimum, we would be obligated to remand for further
factfinding to establish the defendant's responsibility. Deities
may be able to visit the sins of the father on the son, but I
cannot agree that courts should be permitted to visit the sins of
the lawyer on the innocent client.
Page 484 U. S. 434
Nor is the issue resolved by analogizing to tactical errors an
attorney might make such as failing to put witnesses on the stand
that would have aided the defense. Compare ante
484 U. S. 410
484 U. S.
-418. Although we have sometimes held a defendant
bound by tactical errors his attorney makes that fall short of
ineffective assistance of counsel, we have not previously suggested
that a client can be punished for an attorney's
There are fundamental differences between
attorney misconduct and tactical errors. Tactical errors are
products of a legitimate choice among tactical options. Such
tactical decisions must be made within the adversary system, and
the system requires attorneys to make them, operating under the
presumption that the attorney will choose the course most likely to
benefit the defendant. Although some of these decisions may later
appear erroneous, penalizing attorneys for such miscalculations is
generally an exercise in futility, because the error is usually
visible only in hindsight -- at the time the tactical decision was
made, there was no obvious "incorrect" choice, and no prohibited
one. In other words, the adversary system often cannot effectively
deter attorney's tactical errors, and does not want to deter
tactical decisions. Thus, where a defense attorney makes a routine
tactical decision not to introduce evidence at the proper time and
the defense seeks to introduce the evidence later, deterrence
measures may not be capable of preventing the untimely introduction
of evidence from systemically disrupting trials, jury
deliberations, or final verdicts. In those circumstances, treating
the failure to introduce evidence at the proper time as a
procedural default that binds the defendant is arguably the only
means of systemically preventing such disruption -- not because
binding the defendant deters tactical errors any better than direct
punitive sanctions, but because binding the defendant to defense
counsel's procedural default, by definition, eliminates the
disruption. The actual operation of the adversary system generally
bears out the analysis outlined above. Direct punitive sanctions
Page 484 U. S. 435
not available to punish and deter routine tactical errors. If,
however, the erroneous nature of the attorney's decision was
sufficiently evident at the time, then the system does want to
deter the attorney's behavior, and can and does do so by directly
sanctioning the attorney for malpractice. It does not bind the
defendant, who by establishing malpractice would have also
established ineffective assistance of counsel.
The rationales for binding defendants to attorneys' routine
tactical errors do not apply to attorney misconduct. An attorney is
never faced with a legitimate choice that includes misconduct as an
option. Although it may be that "[t]he adversary process could not
function effectively if every tactical decision required client
at 484 U. S. 418
that concern is irrelevant here, because a client has no authority
to approve misconduct. Further, misconduct is not visible only with
hindsight, as are many tactical errors. Consequently, misconduct is
amenable to direct punitive sanctions against attorneys as a
deterrent that can prevent attorneys from systemically engaging in
misconduct that would disrupt the trial process. There is no need
to take steps that will inflict the punishment on the defendant.
Direct punitive sanctions are also more appropriate, since the
determination that misconduct occurred (and the level of penalty
imposed) primarily turns on an assessment of the attorney's
culpability, rather than, as with procedural defaults, an
assessment of the potential for disrupting the trial system. In
this case, there is no doubt that willfully concealing the identity
of witnesses one intends to call at trial is attorney misconduct,
that the government seeks to deter such behavior in all instances,
and that the attorney knows such behavior is misconduct, and not a
legitimate tactical decision at the time it occurs. Direct punitive
sanctions against the attorney are available. See
415(g)(ii). And the decision to impose the evidentiary exclusion
penalty in this case clearly turned on an assessment of the
attorney's culpability. See
App. 25-28; People v.
43 Ill.App.3d 283, 286, 356 N.E.2d 1274, 1277
Page 484 U. S. 436
(1976) (exclusion only justifiable if the discovery violation is
deliberate). No one contends that the same exclusion would have
been justified if the failure to disclose Wormley's identity had
been inadvertent. [Footnote
In short, I can think of no scenario that does not involve a
defendant's willful violation of a discovery rule where alternative
sanctions would not fully vindicate the purposes of discovery
without distorting the truth-seeking process by excluding evidence
of innocence. Courts can couple corrective measures that will
subject the testimony at issue to discovery and adverse credibility
inferences with direct punitive measures that are both proportional
to the discovery violation and directed at the actor responsible
for it. Accordingly, absent evidence that the defendant was
responsible for the discovery violation, the exclusion of criminal
defense evidence is arbitrary and disproportionate to the purposes
of discovery and criminal justice, and should be per se
unconstitutional. I thus cannot agree with the Court's case-by-case
balancing approach, or with its conclusion in this case that the
exclusion was constitutional.
The Court's balancing approach, moreover, has the unfortunate
effect of creating a conflict of interest in every case involving a
willful discovery violation, because the defense counsel is placed
in a position where the best argument he can make on behalf of his
client is: "Don't preclude the defense witness -- punish me
personally." In this very case, for example, the defense attorney
became noticeably timid once the judge threatened to report his
actions to the disciplinary
Page 484 U. S. 437
commission. App. 28-29. He did not argue:
"Sure, bring me before the disciplinary commission; that's a
much more appropriate sanction than excluding a witness who might
get my client acquitted."
I cannot see how we can expect defense counsel in this or any
other case to act as vigorous advocates for the interests of their
clients when those interests are adverse to their own. [Footnote 2/8
It seems particularly ironic that the Court should approve the
exclusion of evidence in this case at a time when several of its
Members have expressed serious misgivings about the evidentiary
costs of exclusionary rules in other contexts. Surely the
deterrence of constitutional violations cannot be less important
than the deterrence of discovery violations. Nor can it be said
that the evidentiary costs are more significant when they are
imposed on the prosecution. For that would turn on its head what
Justice Harlan termed the "fundamental value determination of our
society that it is far worse to convict an innocent man than to let
a guilty man go free." In re Winship,
397 U.S. at
397 U. S. 372
Discovery rules are important, but only as a means for helping
the criminal system convict the guilty and acquit the innocent.
Precluding defense witness testimony as a sanction for a defense
counsel's willful discovery violation not only directly subverts
criminal justice by basing convictions on a partial presentation of
the facts, United States v. Nixon,
418 U.S. at
418 U. S. 709
but is also arbitrary and disproportionate to any of the purposes
served by discovery rules or discovery sanctions. The Court today
thus sacrifices the paramount values of the criminal system in a
misguided and unnecessary effort to preserve the sanctity of
discovery. We may never
Page 484 U. S. 438
know for certain whether the defendant or Bridges' brother fired
the shot for which the defendant was convicted. We do know,
however, that the jury that convicted the defendant was not
permitted to hear evidence that would have both placed a gun in
Bridges' brother's hands and contradicted the testimony of Bridges
and his brother that they possessed no weapons that evening -- and
that, because of the defense counsel's 5-day delay in identifying a
witness, an innocent man may be serving 10 years in prison. I
Although the Court in Rock
was addressing the specific
issue of the defendant's right to offer his own testimony, it
derived the standard it articulated from general compulsory process
case law on the theory that the right to present one's own
testimony extended at least as far as the right to present the
testimony of others. 483 U.S. at 483 U. S.
Illinois Supreme Court Rule 415(g) alone supplies a broad array
of available discovery sanctions:
"(i) If . . . a party has failed to comply with an applicable
discovery rule . . . the court may order such party to permit the
discovery of material and information not previously disclosed,
grant a continuance, exclude such evidence, or enter such other
order as it deems just under the circumstances."
"(ii) Willful violation by counsel of an applicable discovery
rule . . . may subject counsel to appropriate sanctions by the
See, e.g., People v. Santucci, 24 Ill. 2d
, 98, 180 N.E.2d
, 493 (1962) ("Ultimate decisions of fact must fairly be
left to the jury, as must be the determination of the credibility
of witnesses and the weight to be afforded their testimony, and to
this end it is not the province of the judge, in a criminal case,
to convey his opinions on such matters to the jurors by word or
deed"); People v. Heidorn,
114 Ill.App.3d 933, 936, 449
N.E.2d 568, 572 (1983) ("While the trial judge has wide discretion
in the conduct of trial, he must not make comments or insinuations,
by word or conduct, indicative of an opinion on the credibility of
a witness. . . .").
Cf. People v. Rayford,
43 Ill.App.3d 283, 288, 356
N.E.2d 1274, 1278 (1976). The reasons cited by Illinois courts for
forbidding judicial comment do not apply with the same force to
prosecutorial comment. See, e.g., Santucci, supra,
180 N.E.2d at 493; Heidorn., supra,
at 937, 449 N.E.2d at
Precluding a witness based solely on a judge's belief that the
witness lacks credibility might also implicate the constitutional
right to a jury trial in that it usurps the jury's central function
of assessing the credibility of witnesses. The constitutional right
to a jury trial would mean little if a judge could exclude any
defense witness whose testimony he or she did not credit.
On the second day of trial, Tuesday, March 27, 1984, defense
counsel moved to amend his "Answer to Discovery" to include Alfred
Wormley as a defense witness, stating that the defendant had told
him about Wormley earlier, but that he had not been able to locate
Wormley previously. App. 12-13. The next day, Wormley testified
that defense counsel had visited him at his home and served him
with a subpoena on Wednesday, March 21, 1984, five days before the
trial began. Id.
The witness preclusion sanction thus cannot be justified on the
theory that the defendant waived his right to introduce Wormley by
failing to name him prior to trial. Indeed, far from being a
procedural default, the exclusion of evidence is an unusual
sanction applied only in drastic cases, People v. Rayford,
43 Ill.App.3d at 286-287, 356 N.E.2d at 1277, and the decision
whether to apply it lies in the discretion of the trial court, 141
Ill.App.3d 839, 844-845, 491 N.E.2d 3, 7 (1986) (case below).
I also note that a case-by-case balancing approach will create
uncertainty, spawn unnecessary litigation, and make it difficult to
supervise the lower courts. Moreover, any exclusion of criminal
defense evidence also has the important disadvantage of inviting an
ineffective-assistance-of-counsel claim in every case in which it
is applied. Direct sanctions against the attorney would yield no
such opportunity to disrupt final verdicts.
JUSTICE BLACKMUN, dissenting.
I join JUSTICE BRENNAN's dissenting opinion on the understanding
-- at least on my part -- that it is confined in its reach to
general reciprocal discovery rules. I do not wish to have the
opinion express for me any position as to permissible sanctions for
noncompliance with rules designed for specific kinds of evidence
as, for example, a notice-of-alibi rule. In a case such as that,
the State's legitimate interests might well occasion a result
different from what should obtain in the factual context of the