Increasingly, prosecutors are getting themselves in hot water by interfering with the defense’s opportunity to call witnesses. For example, in last year’s prosecution of Broadcom Corp. executive William Ruehle, a federal judge admonished government prosecutors for their improper treatment of proffered defense witnesses. Similarly, a federal judge criticized the prosecution of alleged spy Katrina Leung for seeking to limit a cooperating co-defendant’s opportunity to meet with Leung’s counsel before trial. And, just this year, a state court reversed a conviction because the prosecution interfered with the defendant’s ability to call a witness by conditioning his co-defendants’ pleas on a blanket restriction not to testify, including for the defense. See People v. Treadway, No. C059069, 2010 Cal. App. Lexis 257 (March 1, 2010).
Interfering with potential defense witnesses violates a defendant’s Sixth Amendment right to compulsory process, as well as his or her due process right to a fair trial under the 14th Amendment. As courts have repeatedly noted, “[a] defendant’s right to present a defense, including, most importantly, the right to ‘offer the testimony of witnesses, and to compel their attendance, if necessary,’ is at the very heart of our criminal justice system.” In re Martin, 744 P.2d 374, 391 (Calif. 1987). The government does not have the right to put potential defense witnesses off-limits, either by physically isolating them or by threatening to punish the witnesses if they cooperate with the defense.
