Abstract

Many people have decried the rising partisanship on the United States Supreme Court. One particular lament concerns the Court’s departure from precedent, a shift that has eroded longstanding doctrines such as the right to abortion and affirmative action in higher education. Stare decisis no longer carries the clout it seemingly once did in our Court of Last Resort. This turn of events has caused advocates, especially those on the left, to long for the rights they once held and fear that others may be in jeopardy. Among the rights that seem vulnerable are those that protect criminal defendants.

But there need not only be doom and gloom for the defense community. Activists and advocates should identify doctrines the Supreme Court is unlikely to relegate to the dustbin, either because those doctrines align with values often held by conservative theorists and/or their fact-specific nature makes it unnecessary for the Court to eradicate the case precedent when the majority could just interpret it in a way that advances a result consistent with its agenda. Given that the most consequential criminal cases are heard well beneath the rarefied quarters of the Supreme Court, those engaged in strategic litigation should perhaps zero in on preserving what rights remain at the Supreme Court level and relying on them to foster justice in the lower courts.

This Article takes a close look at one such right: the constitutional right to present a defense in a criminal trial. A half century ago, the Supreme Court issued Chambers v. Mississippi, holding that criminal defendants enjoy a right to present a defense that may permit the admission of information otherwise barred by the rules of evidence. The Chambers majority found that the exclusion of evidence at a criminal trial that has “persuasive assurances of trustworthiness” and is “critical” to the defense violates the Due Process Clause and comprises reversible error. Case law has occasionally tethered this doctrine to the Sixth Amendment’s Compulsory Process Clause, which guarantees criminal defendants the right to call witnesses in their favor.

In this Article, I argue that the fact-specific structure of the right to present a defense, coupled with its historical basis and its libertarian ethos as a bulwark against government overreaching, may provide the key to its longevity in the current legal climate. Specifically, the right to present a defense may appeal to Supreme Court Justices who harbor originalist and/or libertarian inclinations as well as to “realists” comfortable with a doctrine that grants judges vast discretion in charting its boundaries. Part I of the Article explores the birth of the constitutional right to present a defense and takes a deep dive into Chambers. Next, Part II analyzes the post-Chambers case law to detect trends in how judges have applied the doctrine over the past fifty years. Finally, Part III demonstrates how some features of this doctrine, while a source of periodic frustration to litigants, may help ensure that it perseveres in an era when the Supreme Court is more inclined to retract rights than to craft new ones. This presents an opportunity for progressives eager to develop favorable case law in the lower courts.