Thursday, October 15, 2026 | 3:00 P.M. (PT)
UC Berkeley School of Law
“Witness”: Compulsory Process at the Founding and its Consequences Today
Drawing on founding-era research, this lecture reexamines the word “witnesses” in the Compulsory Process Clause and its implications for the Confrontation Clause and the Fifth Amendment privilege against self-incrimination. Founding-era evidence largely supports broad compulsory process rights reaching non-testimonial hearsay, documents, subpoenaed evidence, and non-communicative physical evidence. Yet the Court has narrowed confrontation and self-incrimination rights by defining “witness/es” in those contexts to mean only “testimonial communications.” So Justices who favor interpreting “witness/es” consistently across the Bill of Rights (Alito, Thomas, and Gorsuch have signaled interest) face a choice: dramatically expand Confrontation Clause and Fifth Amendment rights, or ahistorically strip constitutional protection from much of criminal defendants’ subpoena power.
A consistently broad definition could reshape major questions—whether defendants may confront the AI systems that generate or analyze evidence against them (including raw data outputs, training data, models, source code, and the people who design, build, and use those systems), and whether the Fifth Amendment protects self-incriminating GenAI prompts and responses, biometric data (iris, fingerprint, face, and voice prints), involuntarily generated data like CSLI and future agentic-AI trails, and being compelled to decrypt a device by password or biometrics.
CLE will be offered.
Rebecca Wexler
Alfred W. Bressler Professor of Law
Columbia Law School
Rebecca Wexler’s teaching and research sit at the intersection of law and technology, with a specific focus on privacy and secrecy in the context of the criminal legal system. Her work has explored topics including trade secrets, data privacy, and law enforcement privilege. Prior to joining the Columbia Law faculty, she was the Hoessel-Armstrong Professor of Law at the University of California, Berkeley School of Law, where she was also a faculty co-director of the Center for Law & Technology and the Center for Criminal Law & Justice.
Commentators:
Andrea Roth, Professor of Law and Barry Tarlow Chancellor’s Chair in Criminal Justice, UC Berkeley School of Law
Orin Kerr, Stella W. & Ira S. Lillick Professor of Law, Stanford Law School; Senior Fellow, Hoover Institution