54
Thomas, J., concurring
In addition, a broad definition of the term "witness"— one who gives evidence—is consistent with the same term (albeit in plural form) in the Sixth Amendment's Compulsory Process Clause.4 That Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." Soon after the adoption of the Bill of Rights, Chief Justice Marshall had occasion to interpret the Compulsory Process Clause while presiding over the treason trial of Aaron Burr. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807). Burr moved for the issuance of a subpoena duces tecum to obtain from President Jefferson a letter that was said to incriminate Burr. The Government objected, arguing that compulsory process under the Sixth Amendment permits a defendant to secure a sub-noted that, absent such a restriction, the Fifth Amendment was "a general declaration, in some degree contrary to laws passed." 1 Annals of Cong. 753 (J. Gales ed. 1834). Two prominent commentators have suggested that "laws passed" likely refers to § 15 of the Judiciary Act of 1789 (then in the process of passage). See Levy, supra, at 425-426; Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege against Self-Incrimination: Its Origins and Development 258, n. 109 (R. Helmholz et al. eds. 1997). Section 15 provided that federal courts "shall have power in the trial of actions at law . . . to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery." Judiciary Act of 1789, 1 Stat. 82. Section 15's grant of power to compel discovery in civil cases would have been inconsistent with an unrestricted Self-Incrimination Clause, but only if the term "witness" in that Clause included persons who provide such physical evidence as "books" and "writings." Laurance's assertion thus suggests that the Framers believed the Self-Incrimination Clause offered protection against such compelled production.
4 A broad view of the term "witness" in the compulsory process context dates back at least to the beginning of the 18th century. See Act of May 31, 1718, ch. 236, § 4, 1 Laws of Pennsylvania 112 (J. Bioren ed. 1810) (speaking of witnesses "be[ing] admitted to [be] depose[d], or give any manner of evidence" (emphasis added)).
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