This Court has twice expressly reserved judgment on this Sixth Amendment question. Wardius v. Oregon, 412 U.S. 470, 472, n. 4, 93 S. Ct. 2208, 2211, n. 4, 37 L. Ed. 2d 82 (1973); Williams v. Florida, 399 U.S. 78, 83, n. 14, 90 S. Ct. 1893, 1897, n. 14, 26 L. Ed. 2d 446 (1970). Respondent concedes that the question is significant. Brief in Opposition 1. At least one federal Court of Appeals has flatly held "that the compulsory process clause of the sixth amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or orders against criminal defendants." United States v. Davis, 639 F.2d 239, 243 (CA5 1981). Accord, Hackett v. Mulcahy, 493 F. Supp. 1329 (D NJ 1980). See also Ronson v. Commissioner of Corrections, 604 F.2d 176 (CA2 1979). The American Bar Association and several scholarly writers have also found arguable constitutional infirmity in the exclusionary sanction. See 2 ABA Standards for Criminal Justice § 11-4.7(a), and accompanying commentary (2d ed. 1980); Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind.L.Rev. 711, 838-839 (1976); Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 137-139 (1974); Note, 81 Yale L.J. 1342 (1972).
By the count of the Court of Appeals majority, 35 States and the District of Columbia have provisions similar to Rule 741 that allow the exclusion of evidence as a penalty for noncompliance with discovery rules. See 456 A.2d, at 35. Rule 12.1 of the Federal Rules of Criminal Procedure also allows such a sanction to be assessed. One State apparently even requires the exclusionary sanction to be applied when a defendant fails to disclose his witness. See Mich.Comp.Laws Ann. §§ 768.20, .21. In light of the sharp disagreement in the legal community as to the constitutionality of this penalty, I would grant certiorari and resolve this recurring issue.